Citation Nr: 21066847 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-01 516 DATE: November 2, 2021 ORDER A disability rating in excess of 20 percent for Reiter's syndrome is denied. FINDING OF FACT The Veteran was contacted by VA regarding a scheduled VA examination in July 2021 pertaining to his increased rating claim and declined to be examined without good cause; the examination was necessary to determine whether a higher disability rating was warranted. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for Reiter's syndrome have not been met. 38 C.F.R. § 3.655(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1968 to August 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Veterans Affairs (VA) Regional Office (RO), which denied an increased rating for Reiter's syndrome greater than 20 percent. The Veteran filed a Notice of Disagreement (NOD) in July 2014 and the appeal was perfected May 2016. The Board granted the Veteran's request for a Decision Review Officer (DRO) hearing and remanded the claim to the RO in April 2019. After the Veteran postponed four DRO hearings and missed a fifth between January and December 2020, however, the RO filed a Supplemental Statement of the Case (SSOC) in December 2020 denying a rating increase. The Board finds that the hearing request has been effectively withdrawn. Relying on established precedent stressing that the VA's duty to assist includes obtaining a contemporaneous medical examination, the Board again remanded the claim in March 2021 so that the Veteran could be afforded a VA examination more recent than his examinations in 2016 and 2013. The VA scheduled an examination for May 2021, which the Veteran postponed, asserting that he had been exposed to COVID-19. The VA rescheduled the appointment in July 2021 and notified the Veteran. The Veteran declined the examination without explanation. The RO filed an SSOC in August 2021. VA regulations state that when a claimant fails to report for an examination scheduled in conjunction with an increased rating claim, "the claim shall be denied." 38 C.F.R. § 3.655(b). Good cause for failure to report for a VA examination includes, but is not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. 38 C.F.R. § 3.655(a). 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. If these questions are answered in the affirmative, then the Board may apply 38 C.F.R. § 3.655(b), including summary denial. See Turk v. Peake, 21 Vet. App. 565, 569 (2008); see also Kyhn v. Shinseki, 23 Vet. App. 335, 342 (2010) (acknowledging that 38 C.F.R. § 3.655(b) compelled the Board to deny the appellant's claim to reopen for failure to report for his scheduled examination). In this case, the claim on appeal stems from the Veteran's January 2012 request for an increased rating for his Reiner's syndrome. After various procedural delays, including a remand for a DRO hearing and postponed or missed hearings, the Board, in response to the Veteran's repeated complaints that his condition was worsening, remanded the claim a second time for a more up-to-date examination before proceeding further. The Board determined, based on the evidence, that a new examination was necessary before being able to render a decision on the claim. The Veteran was notified that he would be required to attend a VA examination scheduled within months of the remand. The Veteran subsequently contacted VA and rescheduled the examination, citing as good cause his possible exposure to COVID-19. The VA rescheduled the examination, but when contacted, the Veteran declined to be examined and provided no reason for his refusal. It is clear, then, that the Veteran was aware of his rescheduled VA examination, was contacted by VA about said examination and refused to attend the examination without providing a reason. There is no basis, then, in which the Board can find "good cause" in this case. As such, the claim must be denied as a matter of law. 38 C.F.R. § 3.655(b). As an aside, the Board emphasizes that that the duty to assist is not a one-way street. If the Veteran wishes to re-apply for this benefit, it is noted that he must participate in his claim; he cannot passively wait for it in those circumstances where he may have information that is essential. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). (Continued on the next page) The appeal is denied. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Wilkinson, Edward L. 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.