Citation Nr: 21005111 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 17-66 630 DATE: January 29, 2021 ORDER Entitlement to an initial rating greater than 30 percent for migraine headaches is denied. Entitlement to a compensable initial rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran, without good cause, failed to report for the scheduled January 2020 and February 2020 VA examinations necessary to decide his increased rating claims. CONCLUSIONS OF LAW 1. Entitlement to an initial rating greater than 30 percent for migraine headaches is denied based on failure to report for a scheduled VA medical examination. 38 C.F.R. § 3.655(b); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. Entitlement to a compensable initial rating for bilateral hearing loss is denied based on failure to report for a scheduled VA medical examination. 38 C.F.R. § 3.655(b); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from April 1969 to April 1971. The Board has considered the Veteran’s claims and decided entitlement based on the evidence or record. The Veteran has not raised any other issues, nor has any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Increased Rating Entitlement to an initial rating greater than 30 percent for migraine headaches and entitlement to a compensable initial rating for bilateral hearing loss Service connection for migraine headaches and bilateral hearing loss was granted in a September 2013 rating decision, which assigned a 30 percent disability rating for migraine headaches, effective March 4, 2011, and a noncompensable disability rating for bilateral hearing loss, effective May 29, 2013. The Veteran filed a notice of disagreement in April 2014 contesting the disability ratings assigned, and perfected his appeal in December 2017. In March 2019, the Board remanded the Veteran’s claims for additional development, including additional VA examinations. Pursuant to the March 2019 Board remand, the Veteran was scheduled for a VA migraine headaches examination in January 2020 and a VA bilateral hearing loss examination in February 2020 ; however, he failed to report for both examinations. Neither the Veteran nor his representative have presented good cause for his failure to appear. VA regulations provide that, when a claimant fails to report for an examination scheduled in conjunction with a claim for an increased rating, the claim shall be denied. 38 C.F.R. § 3.655(b). While actual notice of the VA examinations scheduled in January 2020 and February 2020 is not on file, administrative records indicate that the Veteran’s listed address matches his latest address of record. See January 2020 Exam Scheduling Request. No mail has been returned from that address and the Veteran has not contended that he did not receive notice of the examinations. The Board thus concludes that the Veteran was properly notified of the scheduled examinations. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (regarding the presumption of regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). Moreover, the August 2020 Supplemental Statement of the Case informed the Veteran of his failure to report, and there has been no attempt on his part to present good cause for his failure to report. In short, the preponderance of the evidence is against a showing of good cause. (Continued on the next page)   As the U.S. Court of Appeals for Veterans Claims has held, “[t]he duty to assist in the development and adjudication of a claim is not a one-way street.” Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). “If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Olson v. Principi, 3 Vet. App. 480, 483 (1992). A remand for additional development in the form a new VA examinations 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. Here, the March 2019 Board remand for VA examinations was necessary to ascertain the current severity and manifestations of the Veteran’s service-connected migraine headaches and bilateral hearing loss. Accordingly, the Board finds that the Veteran’s increased rating claims cannot be established or confirmed without an examination. 38 C.F.R. § 3.655. Where, as here, the regulation is dispositive, the claim must be denied because of lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.