Citation Nr: 20004879 Decision Date: 01/23/20 Archive Date: 02/18/20 DOCKET NO. 15-00 905 DATE: January 23, 2020 ORDER Entitlement to a rating in excess of 20 percent for a status-post right shoulder arthroscopy revision Bankart reconstruction to repair right shoulder with right bicep tendonitis is denied. FINDING OF FACT The Veteran did not report to scheduled Department of Veteran Affairs (VA) examinations for his service-connected status-post right shoulder arthroscopy revision Bankart reconstruction to repair right shoulder with right bicep tendonitis in September 2018 and January 2019 and has not provided good cause for such failure to report. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent for a status-post right shoulder arthroscopy revision Bankart reconstruction to repair right shoulder with right bicep tendonitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.655. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Marine Corps during the Gulf War from October 2011 to May 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision from the Regional Office (RO) of Huntington, West Virginia that continued the Veteran’s 20 percent rating for status post right shoulder arthroscopy revision Bankart reconstruction repair to right shoulder with right bicep tendonitis (referred as right bicep tendonitis (dominant)), with an effective date of May 31, 2013. In August 2018, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) with specific directives requiring the AOJ to: (1) obtain the Veteran’s VA treatment records for the period of August 2016 to the present; (2) schedule the Veteran for an examination by an appropriate clinician to obtain findings to the current severity of the Veteran’s service-connected right shoulder disability; and (3) to extent possible, the examiner should identify any symptoms and functional impairments due to the right shoulder disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. On March 2019, the AOJ issued a Supplemental Statement of the Case (SSOC) denying the Veteran’s claim for a rating higher than 20 percent for a status-post right shoulder arthroscopy revision Bankart reconstruction to repair right shoulder with right bicep tendonitis. Entitlement to a rating higher than 20 percent for a status-post right shoulder arthroscopy revision Bankart reconstruction to repair right shoulder with right bicep tendonitis is denied. The Veteran in his appeal to the Board argues that he is entitled to a compensatory rating higher than 20 percent for his service-connected right shoulder arthroscopy. In September 2018, according to the Board’s August 2018 remand directives, the Veteran was to be scheduled for a VA examination of his right shoulder and bicep disability. The AOJ contacted the Veteran on multiple occasions to schedule a VA examination. However, in September 2018 and January 2019, the Veteran cancelled his VA examination(s), without explanation or “good cause” for his failure to attend a VA examination. Moreover, neither the Veteran nor his representative has requested that this examination be rescheduled or provided an explanation for his failure to appear at these examinations. With respect to the Veteran’s failure to report for examination, the United States Court of Appeals for Veterans Claims (Court) has held that the burden is upon VA to demonstrate that notice was sent to the claimant’s last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Here, there is no evidence in the record that the VA’s letters and phone calls were not received. In fact, the record evidences direct communications from the Veteran to VA cancelling scheduling requests for a VA examination. From August 2018, the date of the Board’s decision remanding the matter to the AOJ, VA has received one letter that was addressed to the Veteran that was returned as “undeliverable”—the Board’s December 1, 2018 letter explaining the Rapid Appeals Modernization Program (RAMP) Option. The record contains Congressional correspondence confirming the Veteran’s address and a due process waiver filed by the Veteran’s representative seeking to “expedite” the Veteran’s appeal. There is no indication that VA was using an incorrect address for the Veteran, nor has it been asserted. Thus, the Board finds that no further development needs to be taken to schedule the Veteran for a VA examination. When a claimant fails to report for a VA examination scheduled in conjunction with a claim for an increased rating, the claim shall be denied. See 38 C.F.R. § 3.655(b). The duty to assist is not always a one-way street. If a veteran wishes help, he and his counsel cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991) (aff’d on reconsideration, 1 Vet. App. 460 (1991)); see also C.F.R. § 3.655(b). In the instant case, a current VA examination is necessary to determine the Veteran’s contention that his right shoulder and bicep impairment is worsening. The claim for an increased rating decision is not an initial original compensation claim and cannot be decided solely based on the evidence of record. See 38 C.F.R. § 3.160. The Board’s August 2018 decision provided specific reasons for remanding the matter for further development and a new examination of the Veteran’s disability. The Veteran nor his counsel have provided any rationale showing good cause or explaining why the Veteran failed to report for the VA examinations. Furthermore, the March 2019 SSOC provides the provisions for failure to report for a VA exam, including that when a claimant fails to report for an examination scheduled in conjunction with an increased rating claim, the claim shall be denied. See C.F.R. § 3.655. VA has attempted on multiple occasions, evidenced in the record, to schedule this examination; however, the Veteran cancelled each request for a VA examination. The Veteran appeared for a VA examination in August 26, 2014, but he failed to appear in September 2018 and January 2019 for an examination that would allow his right shoulder disability to be examined to determine the current status of his impairment. Nor has the Veteran expressed a willingness to appear for future examinations. Hence, no further notice or assistance to the Veteran is required to fulfill VA’s duty to assist. There is also no evidentiary basis upon which to assign a rating greater than 20 percent for the Veteran’s shoulder impairment. The Veteran has self-reported treating his shoulder condition with Tylenol and Motrin. However, the record does not reflect clinical findings, to include range of motion measurements, regarding the Veteran’s right shoulder that are a sufficient basis to allow the claim. 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. 38 C.F.R. § 3.655(b) provides, 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. (Continued on the next page)   Based upon the foregoing discussion, the Board finds that the Veteran failed to report for a VA examination to evaluate his claim for an increased rating, and he has not shown good cause for failing to appear; therefore, a denial of the claim based on the application of 38 C.F.R. § 3.655(b) is warranted. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kimberly N. Henderson, Associate 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.