Citation Nr: 21000664 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-36 002 DATE: January 5, 2021 ORDER An initial disability rating in excess of 10 percent for service-connected status-post right tibia fracture (right leg disorder) is denied. FINDING OF FACT The Veteran declined to appear for a VA examination scheduled to evaluate the current severity of his service-connected right leg disorder. CONCLUSION OF LAW The claim of entitlement to an initial disability rating higher in excess of 10 percent for a service-connected right leg disorder must be denied as a matter of law. 38 C.F.R. § 3.655. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1961 to August 1965. In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board). A transcript of that hearing has been associated with the claims file. In February 2019, the Board remanded this issue for additional development; the claims file has been returned to the Board for adjudication. Entitlement to an initial disability rating in excess of 10 percent for a service-connected right leg disorder. The Board, in its February 2019 remand, directed the VA Regional Office (RO) to afford the Veteran a new VA examination to determine the current severity of his service-connected right leg disorder as the VA examination reports of record did not sufficiently address additional functional loss during flare ups, or specify whether the right knee joint was tested for pain in both active and passive motion, in weight-wearing and nonweight-bearing. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). Of record is an undated internal RO document indicating that the VA examination scheduled for August 4, 2020, was cancelled as the Veteran declined the examination. An August 12, 2020. Report of General Information indicates that the Veteran telephoned the RO and reported that he wanted his “appeal closed,” and reported that “this” had already been decided. The RO issued an August 2020 Supplemental Statement of the Case (SSOC) denying entitlement to an initial disability rating in excess of 10 percent for a service-connected right leg disorder on the merits based on the evidence of record as the Veteran did not appear for the requested VA examination and there was no indication that he wished to appear at a different location or time. A September 2020 Report of General Information indicates that the Veteran telephoned the RO and reported that he was told to go to an examination and then told not to and was not sure; he mentioned that he was set to have an examination and was not sure if he would attend, that he would think about it. The RO informed him that the examination in question was related to the Board’s February 2019 Remand; the Board notes that the only issue remanded for additional development by the Board in February 2019 was entitlement to an initial disability rating in excess of 10 percent for a service-connected right leg disorder. A September 2020 Deferred Rating Decision indicates that the RO sought to contact the Veteran to see if he would like to attend a new VA examination as his prior communication had been confusing and to inform him that he would need to submit a written request to withdraw his appeal if he so chose. In a September 2020 letter, the RO provided recitation of the Veteran’s communications regarding wanting to close his appeal and reluctance to attend a VA examination; the RO requested that the Veteran respond within 30 days if he would like to attend a VA examination and informed him that if he did not respond within that time period, the RO would adjudicate his claim. The RO issued an October 2020 SSOC denying entitlement to an initial disability rating in excess of 10 percent for a service-connected right leg disorder on the merits based on the evidence of record as the Veteran did not respond to the RO’s inquiries as to his willingness to appear for a VA examination. When a claimant fails to report for VA examination without good cause in connection with a claim for an increased rating, the claim shall be denied. 38 C.F.R. § 3.665 (b). This provision applies when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination. 38 C.F.R. § 3.665 (a). As discussed above, the Board, in its February 2019 remand, sought a new VA examination to determine the current severity of the Veteran’s service-connected right leg disorder on the basis that the VA examination reports of record were inadequate. The Board thus remanded the claim for a new VA examination which was necessary to determine the current severity of the Veteran’s disability for the purposes of adjudicating entitlement to an increased rating. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007). Accordingly, 38 C.F.R. § 3.665 applies. (Continued on the next page) As the Veteran has not provided good cause for not attending the examination, and did not respond to the RO’s attempts at resolving the issue, the Board finds that the claim of entitlement to an initial disability rating in excess of 10 percent for a service-connected right leg disorder must be denied as a matter of law pursuant to § 3.665(b). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.