Citation Nr: 20032972
Decision Date: 05/12/20	Archive Date: 05/12/20

DOCKET NO. 16-05 654
DATE: May 12, 2020

ORDER

Entitlement to a compensable initial rating for status post upper right lobe wedge resection with residual chest pain is denied.

FINDING OF FACT

The Veteran failed without good cause to report for a VA examination that was necessary to evaluate his status post upper right lobe wedge resection with residual chest pain.

CONCLUSION OF LAW

The claim for a compensable initial rating for a status post upper right lobe wedge resection with residual chest pain is denied due to the Veteran’s failure to report for a necessary VA examination.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from April 2005 to October 2008.

This claim comes to the Board of Veterans’ Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

This case was previously before the Board in September 2018, when it was remanded for further development.  See Board remand, September 17, 2018.  The Board determined that such examination was necessary as the available treatment records did not contain any information that addressed the diagnostic criteria for this disability and the Veteran had not been examined for that disability since May 2013.

Pursuant to the September 2018 Board remand directives, the Agency of Original Jurisdiction (AOJ) scheduled the Veteran for a VA examination in January 2020.  The Veteran failed to report for the scheduled examination.  See Request for Physical Examination, January 4, 2020. 

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, action shall be taken in accordance with the type of claim.  38 C.F.R. § 3.655(a). 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.  38 C.F.R. § 3.655(b).

The first question for resolution here is whether the benefits cannot be established or confirmed without the examination.  It goes without saying that a remand implies a finding that the benefit cannot be granted based on the evidence of record.  If the benefit could be granted, the remand would be unnecessary.  The stated bases for the Board’s remand were to determine the current severity of the service-connected disability.  Indeed, the examination was necessary to evaluate the Veteran’s assertions of worsening and to determine the extent of worsening, if found.  As explained by the Board in its September 2018 remand, the evidence of record was not sufficient to reach a decision on the issue. 

Having found that the criteria under 38 C.F.R. § 3.655(a) are met, the disposition of the increased rating claim is contingent on the type of claims at issue.  The rating claim is not the original claim for compensation.  It is a claim for an increase for an already service-connected disability.  The appropriate disposition regarding that claim is denial as per 38 C.F.R. § 3.655(b).  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). 

 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Lech, 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.