Citation Nr: 20004261 Decision Date: 01/21/20 Archive Date: 01/17/20 DOCKET NO. 15-18 533 DATE: January 21, 2020 ORDER Entitlement to a compensable evaluation for service-connected bilateral hearing loss prior to December 2, 2014, and in excess of 20 percent from December 2, 2014, is denied. FINDING OF FACT Without good cause, the Veteran failed to appear at a September 2019 VA examination scheduled in conjunction with his claim for increase for service-connected bilateral hearing loss. CONCLUSION OF LAW Entitlement to a compensable evaluation for service-connected bilateral hearing loss prior to December 2, 2014, and in excess of 20 percent from December 2, 2014, is denied on the basis of the Veteran’s failure to report for a VA medical examination. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.655 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1943 to May 1946. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and April 2015 rating decisions. In June 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded this matter for additional development in September 2017, December 2018, and July 2019. Entitlement to a compensable evaluation for service-connected bilateral hearing loss prior to December 2, 2014, and in excess of 20 percent from December 2, 2014 The record reflects that in April 2013, the Veteran filed a claim for an increased rating for his service-connected bilateral hearing loss. In order to assist in determining the current severity of the disability, the Veteran reported for VA examinations in January 2014 and December 2014. In September 2017 and December 2018, the Board remanded this matter to have the Veteran scheduled for a VA examination to assess the severity of his service-connected bilateral hearing loss. A document in the file received May 7, 2019, indicates that the examination was cancelled at the Veteran’s request. This document was not prepared by the Veteran or his representative. In the May 2019 SSOC, it is indicated that the Veteran had failed to report for the examination. The Board notes that there is no specific documentation in the claims file showing that the Veteran was notified of the examination. As it appeared the Veteran may not have received notification of the examination prior to the date of the examination, the Board again remanded this matter in July 2019 to have the Veteran once more be scheduled for a VA examination to assess the severity of his service-connected bilateral hearing loss to ensure procedural due process procedures were followed. The record reflects that the Veteran was then scheduled for a VA examination. A document in the file received September 3, 2019, indicates that the Veteran did not report for the scheduled examination to evaluate his bilateral hearing loss. Pursuant to 38 C.F.R. § 3.655, 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 scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was 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 absent a showing of good cause. The Veteran’s last known address of record is listed in the July 2019 Exam Scheduling Request form as well as the September 2019 Exam Scheduling Request Contention Cancellation form in the claims file. The Board acknowledges that the record does not contain a notice letter for the examination, and there is no published guidance establishing the presumption of regularity in such a situation. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). However, the Board finds that the facts of this case are distinguishable from the facts considered in Kyhn, as the Veteran has not asserted that he did not receive notice of the examination. Here, the Veteran and his representative were clearly advised of the provisions of 38 C.F.R. § 3.655 in the July 2019 Board remand. Thus, the record demonstrates that the Veteran was made aware of the consequences for his failure to report for an examination under 38 C.F.R. § 3.655. Moreover, in a September 2019 letter, the AOJ informed the Veteran that it had received a notice from the facility where his VA Compensation and Pension examination was scheduled stating that he did not report for his scheduled examination. The AOJ then requested that the Veteran indicate if he would like to have his Compensation and Pension examination rescheduled. The Veteran was given an opportunity to respond to that letter but did not request that the September 2019 examination be rescheduled or report that he failed to receive notice of that examination. In fact, in his September 2019 response to the AOJ, he indicated that he had “no pending claim” with VA, noting that he had 100 percent disability. After noting that he had a routine audiology examination at Santa Maria VA CBOC on September 12, 2019, he requested that the AOJ review his complete VA treatment records and let him know when he could “expect to die in peace”. The Board notes that “[t]he duty to assist is not always a one-way street,” and claimants are expected to comply with reasonable requests. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this case, the record does not reflect that the Veteran attempted to reschedule the September 2019 VA examination, and neither the Veteran nor his representative has provided any good cause for his failure to report to the examination. As the Veteran failed to report for a VA examination scheduled in conjunction with his claim for increase without good cause, the claim must be denied under 38 C.F.R. § 3.655. Accordingly, the Veteran’s claim for entitlement to a compensable evaluation for service-connected bilateral hearing loss prior to December 2, 2014, and in excess of 20 percent from December 2, 2014, is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.