Citation Nr: 21063153
Decision Date: 10/13/21	Archive Date: 10/13/21

DOCKET NO. 16-26 608
DATE: October 13, 2021

ORDER

Entitlement to an initial rating in excess of 10 percent for right wrist degenerative arthritis status post fracture is denied.

FINDING OF FACT

The Veteran failed to report for examination with respect to the evaluation of right wrist degenerative arthritis status post fracture. The Veteran has not provided good cause for missing this examination.

CONCLUSION OF LAW

The claim of entitlement to an initial evaluation in excess of 10 percent for right wrist degenerative arthritis status post fracture from April 30, 2014 lacks legal merit due to the Veteran's failure to report for a necessary VA examination. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655(b).

 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the United States Army from April 1962 through July 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The claim currently before the Board was previously remanded in October 2020.

1. Entitlement to an initial rating in excess of 10 percent for right wrist degenerative arthritis status post fracture

Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate.

When a claimant fails to report for a medical examination scheduled in conjunction with an original compensation claim, without good cause, the claim shall be rated based on the evidence of record. "When the examination was scheduled in conjunction with any other original claim, a reopened claim...or a claim for increase, the claim shall be denied." 38 C.F.R. § 3.655(b).

The issues on appeal do not stem from an original compensation claim, but rather a claim for increase. As explained in the Board's October 2020 Remand, an examination was necessary for the increased rating claim on appeal. Specifically, the Board indicated that examination was necessary in order to estimate functional loss during flare-ups. The Veteran's decision to not appear, without good cause, prevents a meaningful discussion of the law as it applies to the facts. See Exam Scheduling Request Clarification Response, dated June 4, 2021.

As the Veteran failed to attend this VA examination without good cause, which were necessary to properly adjudicate the rating claim, the claim is denied. 38 C.F.R. § 3.655. The issues on appeal did not stem from the original claim for compensation, which was filed prior to November 1966. We also note that this concept is consistent with guidance from the Court. The duty to assist is not a one-way street or a blind alley.

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jonah Nelson, 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.