Citation Nr: 21002834 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 15-32 179 DATE: January 15, 2021 ORDER An initial rating in excess of 10 percent for traumatic brain injury (TBI) is denied. FINDING OF FACT The Veteran did not schedule or report for a VA examination in conjunction with his claim for an increased rating for TBI; and has not shown good cause for failure to do so. CONCLUSION OF LAW The claim for entitlement to an initial rating in excess of 10 percent for TBI is denied based on the Veteran’s failure to report for a VA examination in connection with his claim for increase. 38 U.S.C. § 501; 38 C.F.R. § 3.655(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2005 to December 2011. This appeal comes before the Board of Veterans’ Appeals (Board) from a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. In November 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In June 2019, the Board remanded the claim for further development. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an initial rating in excess of 10 percent for TBI. The Veteran, and his representative, contends that a higher rating is warranted for his TBI. The Board finds that the Veteran failed to report for an examination scheduled for his claim for increase, and he has not shown good cause for failing to appear; as such, denial of the claim, based on the application of 38 C.F.R. § 3.655(b), is warranted. VA regulations provide that where a VA examination is scheduled in conjunction with a claim for increased rating, the claim shall be denied, but when scheduled in conjunction with an original claim, the claim shall be decided on the basis of the other evidence of record. 38 C.F.R. § 3.655(a), (b). Thus, the first question the Board must answer is whether the VA examination in this matter was scheduled in conjunction with an original claim or a claim for increase. The claim currently before the Board is for entitlement to an increased rating for TBI, which is considered a claim for increase. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Next, the Board must consider the propriety of denying the claim for the Veteran’s non-attendance of his VA examination. 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 examination. Turk v. Peake, 21 Vet. App. 565, 569 (2008). Viewing the record as a whole, the Board has determined that a VA examination was necessary to properly adjudicate the issue of entitlement to an increased rating. Indeed, in the June 2019 Board remand, the Board explained that a VA examination was necessary because the Veteran claimed that the disability had worsen since his last examination and because the available evidence was insufficient to adequately evaluate his TBI. See BVA Decision (June 2019). Finally, the Board has considered whether the Veteran had good cause for failing to attend his VA examination. Examples of good cause include, but are not limited to, illness, hospitalization, death of an immediate family member, or other similar circumstances. 38 C.F.R. § 3.655(a). Unfortunately, there appears no evidence in the record as to why the Veteran did not attend. In this regard, the record reveals that the Veteran was contacted numerous times, through voice and postal mail, for rescheduling of his examination. The Veteran, however, was non-responsive to VA’s inquiries. See Correspondence (March 2020) & Subsequent Development Letter (February 2020). Next, in the June 2019 Board decision, the Board cautioned the Veteran that (1) under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, “the claim shall be denied,” unless good cause is shown; (2) VA’s duty to assist in the development of a claim is not a one-way street; and (3) he should cooperate and assist as requested in the development of the claim. Given the above and the Veteran’s non-responsiveness to VA inquiries, and in the absence of evidence of good cause for his non-attendance for the VA examination, the Board finds that the Veteran failed to report for an examination scheduled for his claim for increase, and he has not shown good cause for failing to appear for his VA examination. (Continued on the next page)   Accordingly, the claim is denied. 38 C.F.R. § 3.655(b). There is no doubt to resolve. See 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, 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.