Citation Nr: 20021533 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 14-34 315 DATE: March 26, 2020 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for temporomandibular joint syndrome (TMJ) is denied. FINDING OF FACT The Veteran failed to attend her scheduled VA examination without good cause, which was necessary to substantiate her claim. CONCLUSION OF LAW The criteria for compensation pursuant to 38 U.S.C. § 1151 for TMJ have not been met. 38 U.S.C. §§ 1110, 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1989 to July 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a remand on this claim in October 2018. Compensation Pursuant to 38 U.S.C. § 1151 Compensation under 38 U.S.C. § 1151 is awarded for a qualifying additional disability caused by improper VA treatment. A disability is a qualifying additional disability if the disability was not the result of the Veteran’s willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary of the VA, either by a Department employee or in a Department facility and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 C.F.R. § 3.361. 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for TMJ. The Veteran originally requested service connection for TMJ pursuant to § 1151 in January 2006. This claim was denied in an August 2006 rating decision, which the Veteran did not appeal. In April 2012, the Veteran requested to reopen her claim for service connection for TMJ pursuant to § 1151. The claim was again denied in an October 2012 rating decision, however this time the Veteran appealed the claim all the way up to the Board. In October 2018, the Board issued a decision reopening the Veteran’s request for service connection for TMJ pursuant to § 1151 and remanding the claim back to the RO to provide the Veteran with another VA examination. The Veteran failed to attend her scheduled VA examination. Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination is 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. 38 C.F.R. § 3.655(b). VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160(b). When a Veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination. See 38 C.F.R. § 3.655(a); Turk v. Peake, 21 Vet. App. 565, 569 (2008). In this case, the examination was necessary because of conflicting medical evidence regarding whether the Veteran had a current diagnosis of TMJ and if so, its etiology. As explained in the October 2018 Board remand, the Veteran was given a VA examination for her TMJ in August 2014, however the examiner did not note that the Veteran’s claims file had been reviewed and reported that the Veteran never had a diagnosis of TMJ despite several VA treatment notes from 2005 wherein clinicians were trying to determine whether the Veteran had TMJ. Regarding good cause, neither the Veteran nor her representative has provided good cause for failing to attend her scheduled VA examination. A document received into the electronic file on September 3, 2019 notes that the Veteran’s exam was cancelled because the Veteran was unavailable. Another document within the electronic file received November 18, 2019 notes that the Veteran’s exam was cancelled due to “no show.” Additionally, neither the Veteran nor her representative has requested another examination or, after receipt of the December 2018 supplemental statement of the case, argued that the Veteran never received notice of her scheduled exam. Thus, the Board finds that the Veteran failed to attend her scheduled VA examination for TMJ without good cause. Having found that the criteria under 38 C.F.R. § 3.655(a) are met, the disposition of the claim is contingent on the type of claim at issue. The Board notes that the Veteran’s claim for compensation for TMJ is a reopened claim, thus pursuant to 38 C.F.R. § 3.655(b) it must be denied due to the Veteran’s failure to attend her scheduled VA examination without good cause. Accordingly, entitlement to compensation pursuant to 38 U.S.C. § 1151 for TMJ is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.