Citation Nr: 18145026
Decision Date: 10/26/18	Archive Date: 10/25/18

DOCKET NO. 12-24 618
DATE:	October 26, 2018
ORDER
Entitlement to a rating in excess of 20 percent for residuals of remote history of nonunion fracture of the left proximal clavicle (herein left shoulder disability) before October 1, 2013, and after February 1, 2014, is denied.
FINDING OF FACT
The Veteran failed, without good cause, to report for a scheduled reexamination necessary to adjudicate this claim.
CONCLUSION OF LAW
The claim of entitlement to a rating in excess of 20 percent for left shoulder disability lacks legal merit due to the Veteran’s failure to report for a necessary examination.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.655 (b) (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had qualifying service from August 1989 to October 1989.
In December 2014 and October 2017, the Board remanded for further development.  
1. Left Shoulder Disability
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, the benefit shall be denied.  38 C.F.R. §§ 3.655(a), (b).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc.  38 C.F.R. § 3.655(a).
In its October 2017 remand, the Board found the March 2015 examination inadequate and discussed the need for reexamination.  Specifically, the Board found that the 2015 examiner: (a) noted pain with motion and limitation of motion, but did not indicate the amount of additional range of motion loss due to pain; and (b) failed to provide findings required by the Correia holding.  DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (examiners must address additional range of motion loss due to factors such as pain, weakened movement, excess fatigability, incoordination, and flare-ups); Correia v. McDonald, 28 Vet. App. 158, 170 (2016) (examiners must measure active and passive range of motion with and without weightbearing).  
The Veteran was scheduled for reexamination on November 28, 2017, but the Veteran failed to report.  See November 2017 C&P Examination.  On January 30, 2018, VA contacted the Veteran to inquire about the failure to report and the Veteran requested rescheduling; during the phone call, VA rescheduled the reexamination.  See January 2018 Report of General Information.  However, on March 2, 2018, the Veteran failed to report for reexamination again.  See March 2018 Miami VAMC record (the “Veteran was a no show for C&P ortho 4 clinic today”).  The July 2018 Supplemental Statement of the Case (SSOC) informed the Veteran of his failure to report and of examples of good cause.  However, to date, neither the Veteran nor his representative have provided an explanation for the Veteran’s failure to report.  See September 2018 Brief.  
In sum, the Board is unable to confirm the severity of the left shoulder disability without a reexamination that is compliant with the DeLuca, Mitchell, Correia, and Sharp holdings.  DeLuca, 8 Vet. App. 202; Mitchell, 25 Vet. App. at 44; Correia, 28 Vet. App. at 170; Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (examiners must ascertain adequate information about flare-ups, such as frequency, duration, characteristics, severity, and functional loss).  As the Veteran failed, without good cause, to report for the reexamination necessary to adjudicate this claim, the Board finds that the claim lacks legal merit and must be denied as a matter of law.  38 C.F.R. §§ 3.655(a), (b); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not a one-way street).
 
R. FEINBERG
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	H. Daus, Associate Counsel