Citation Nr: 21002615 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 15-23 159 DATE: January 14, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for lumbar spine disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran canceled his scheduled VA examination and good cause for his failure to report was not shown. 2. Entitlement to benefits could not be established with current examinations. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for lumbar spine disability have not been met. 38 C.F.R. § 3.655. 2. The criteria for entitlement to a TDIU have not been met. 38 C.F.R. § 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy on active duty from November 1976 to November 1980; May 1981 to April 1983; and May 1991 to May 1997. The issues come before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2018. A transcript of the hearing has been included with the record. The Board previously remanded the above issues in August 2019 to provide a VA examination to address the severity of the Veteran’s lumbar spine disability, and to provide development for the Veteran’s TDIU claim. 1. Entitlement to a disability rating in excess of 10 percent for a lumbar spine disability 2. Entitlement to TDIU due to service-connected disabilities The Veteran contends that his lumbar spine disability is more severe than is reflected by his 10 percent rating. The Veteran asserted his back condition was too painful to perform the range of motion tests administered during his May 2016 VA examination. Accordingly, the Veteran claims his lumbar spine condition was not adequately rated. In the July 2018 Board hearing, the Veteran asserted his lumbar spine disability worsened since his May 2016 VA examination. Additionally, the Veteran testified that he was unable to maintain employment since 2013 due to his back disability. Pursuant to the August 2019 Board remand, the RO entered an examination scheduling request for the Veteran’s VA lumbar back examination in February 2020. The record contains a March 2020 examination scheduling modification form, noting the cancellation of the examination at the Veteran’s request. The record provided that the Veteran stated he did not wish to pursue his claim. The record contains two clarification letters sent by the RO in March 2020 and June 2020, which notified the Veteran of the written requirements associated with the requested withdrawal of the appeal. Neither the Veteran nor his representative has offered any further explanation for the Veteran's cancellation of his scheduled examination. Further, the Veteran has not submitted a written request for withdrawal. Additionally, the record contains subsequent development letters, sent by the RO in November 2019 and January 2020, which provided VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, needed to develop the Veteran’s claim for TDIU. No completed VA Form 21-8940 is included in the record. 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; and the examination was scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655, The Veteran's claim for a higher evaluation for a lumbar spine disability and his claim for entitlement to TDIU are claims for increase. 38 C.F.R. § 3.655(b); see Turk v. Peak, 21 Vet. App. 565, 568 (2008); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). As the Veteran has not alleged good cause for the cancellation of his VA examination, the Board finds that good cause is not shown. See 38 C.F.R. § 3.655. Further, the Veteran has made no effort to formally withdraw his claims. Therefore, the claims must be denied pursuant to 38 C.F.R. § 3.655(b). See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim must be denied due to a lack of legal merit). The Board notes that the duty to assist a claimant is not a one-way street, and in the instant case, the Veteran has failed to cooperate to the full extent in the development of his claims. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the Veteran failed without good cause to appear for his VA examination in the context of increased rating claims, denial of an increased rating for lumbar spine disability, and TDIU, based on the application of 38 C.F.R. § 3.655(b) is warranted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, 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.