Citation Nr: 20005504
Decision Date: 01/23/20	Archive Date: 01/22/20

DOCKET NO. 13-18 267
DATE: January 23, 2020

ORDER

Entitlement to an initial compensable rating for tension headaches is denied.

FINDING OF FACT

The Veteran, without good cause, refused to report to a VA examination scheduled in September 2019, for his claim of entitlement to an initial compensable rating for tension headaches.

CONCLUSION OF LAW

The claim for an initial compensable rating for tension headaches is denied as a matter of law.  38 C.F.R. § 3.655(b) (2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from July 1971 to July 1975, and in the United States Army from December 1984 to March 1987.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  This matter was previously remanded by the Board in April 2018.  The case has been returned to the Board at this time for further appellate review.

Veterans seeking compensation are required to report for scheduled examinations.  38 C.F.R. §§ 3.326, 3.327, 3.655.  When a claimant, without good cause, fails to report for an examination scheduled in conjunction with a claim for increased rating, the claim shall be 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 or death of an immediate family member.  38 C.F.R. § 3.655(a).

In April 2018, the Board remanded the Veteran’s claim for a reexamination to assess the current nature and severity of the Veteran’s service-connected tension headaches in order to fully and fairly evaluate the disability on appeal.

In September 2019, pursuant to the Board’s remand directive, the RO attempted to schedule the Veteran for a VA examination in connection with his claim for an initial compensable rating.  The Veteran was notified that VA was attempting to schedule his examination, however, he refused to appear, indicating that he did not submit a claim for headaches.  See September 19, 2019 Cancellation of VA Examination; December 6, 2019 Informal Hearing Presentation.

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VA notified the Veteran that his failure to appear for a VA examination could adversely impact his claims.  See, e.g., April 2010 VA Notification Letter; October 2019 Supplemental Statement of the Case.  To date, neither the Veteran nor his representative have requested rescheduling of the VA examination or provided any additional reason for the Veteran’s refusal to attend the VA examination.

Because the evidence reflects that the Veteran refused to report for a VA examination scheduled in connection with his increased rating claim without good cause, and because the Board found in its April 2018 remand that such examination was necessary to determine his entitlement to an increased rating, the Veteran’s claim for an initial compensable rating for his service-connected tension headaches must be denied as a matter of law.  See 38 C.F.R. § 3.655(b); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Elias, 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.