Citation Nr: 21062193 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-36 075 DATE: October 6, 2021 ORDER A rating in excess of 20 percent for diabetes mellitus is denied. A rating in excess of 20 percent for peripheral neuropathy of the left lower extremity, associated with diabetes mellitus, is denied. A rating in excess of 20 percent for peripheral neuropathy of the right lower extremity, associated with diabetes mellitus, is denied. FINDING OF FACT The Veteran, without good cause, failed to appear for VA examinations scheduled to adequately assess the severity of the service-connected disabilities on appeal. CONCLUSIONS OF LAW 1. The criteria are not met for a disability rating in excess of 20 percent for diabetes mellitus. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.655, 4.1, 4.2, 4.7, 4.10, 4.21, 4.119, Diagnostic Code (DC) 7913. 2. The criteria are not met for a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.655, 4.1, 4.2, 4.7, 4.10, 4.21, 4.119, Diagnostic Code (DC) 8520. 3. The criteria are not met for a disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.655, 4.1, 4.2, 4.7, 4.10, 4.21, 4.119, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the Army from January 1956 to December 1958 and in the Coast Guard from June 1960 to June 1964 and from June 1971 to October 1977. These matters come before the Board of Veterans' Appeals (Board) from an August 2016 rating decision. These matters were remanded by the Board in June 2020 for VA examinations to assess the current severity of the service-connected disabilities on appeal. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Increased Ratings 1. A rating in excess of 20 percent for diabetes mellitus 2. A rating in excess of 20 percent for peripheral neuropathy of the left lower extremity, associated with diabetes mellitus 3. A rating in excess of 20 percent for peripheral neuropathy of the right lower extremity, associated with diabetes mellitus As discussed above, in June 2020 the Board remanded these matters for new VA examinations to assess the current severities of the disabilities on appeal. The claims file reflects that an Exam Scheduling Request was forwarded to QTC for the requested examinations in August 2020. The record indicates that these examinations were canceled per the Veteran's request in November 2020. See November 2020 Exam Scheduling Request Contention Cancellations. In an April 2021 correspondence, the Veteran's wife stated that the Veteran does not wish to be reexamined in connection with these disabilities on appeal and that he is satisfied with his current ratings. According to VA regulation, when a claimant, without good cause, fails to report for a necessary examination scheduled in conjunction with a claim for an increase in the rating for a service-connected disability, the claim shall be denied. See 38 C.F.R. § 3.655 (directing the mandatory denial in this circumstance given the express "shall" language used in this governing VA regulation). (Continued on the next page) 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 scheduled examination. See Turk v. Peake, 21 Vet. App. 565 (2008). See also Rouse v. Wilkie, 2020 U.S. App. Vet. Claims Lexis 1479 (July 31, 2020). In the present situation, the Board had found that the examinations for the disabilities on appeal were necessary to reassess their severity. The Veteran has not provided justifiable reason or explanation (i.e., the required good cause) for his failure to report for that examination. Rather, his wife has communicated his satisfaction with his current ratings and his unwillingness to undergo any further VA examinations in connection with these service-connected disabilities. Therefore, his claims for increased ratings are denied according to 38 C.F.R. § 3.655. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.