Citation Nr: 21069063 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-27 403 DATE: November 17, 2021 ISSUE Entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative disc disease (DDD), status post compression of L1. ORDER Entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative disc disease (DDD), status post compression of L1 is denied. FINDING OF FACT After being afforded actual notice, the Veteran requested to cancel, and therefore, failed to appear for a scheduled VA examination that was necessary to evaluate his claim for a higher rating for his for lumbar spine degenerative disc disease (DDD), status post compression of L1. CONCLUSION OF LAW The claim of entitlement to an increased disability rating for lumbar spine degenerative disc disease (DDD), status post compression of L1 lacks legal merit due to the Veteran's failure to report for a necessary examination without good cause shown, and must be denied as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1985 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in March 2019 for further development. Upon review of the claims file the Board finds that there has been substantial compliance with the remand directives, and the issue is now back before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97 (2008). Entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative disc disease (DDD), status post compression of L1. The Veteran, in his claim for an increased rating, has asserted his lumbar spine degenerative disc disease (DDD), status post compression of L1 is more severely disabling than the currently assigned 20 percent rating. Throughout the appeal period he has argued that his condition has continued to worsen. As part of the Board's March 2019 remand, the Board determined that a new VA examination for the Veteran's lumbar spine would be necessary in order to ascertain the current state of this service-connected disability. The examination was scheduled for August 19, 2021, and while the Veteran was properly notified of the appointment, the Veteran requested that the appointment be canceled and to date has not requested to reschedule. VA regulations provide that when entitlement to a benefit cannot be established without a current VA examination or reexamination, and the claimant, without good cause, fails to report for such examination, when the examination was scheduled for a claim for increase, the claim shall be denied. See 38 C.F.R. § 3.655 (a) & (b) (2020). Examples of good cause that would excuse the failure to report for a scheduled VA examination or reexamination include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). In other words, if a Veteran fails to report to a scheduled VA examination, the Board must consider (1) whether the examination was necessary to decide the claim and (2) whether the veteran had good cause to miss the examination. See Turk v. Peake, 21 Vet. App. 565, 569 (2008). In a June 1, 2020 Report of General Information, it is noted that, per the March 2019 remand directives, the RO contacted the Veteran by phone and informed him of the need for a VA examination for his lumbar back claim. At that time the Veteran agreed to attend the examination. On June 2, 2020 the RO sent a letter to the Veteran informing him that a request for a VA examination had been made and that he would be notified when the examination was scheduled. The letter notified the Veteran that if he could not attend the appointment or wanted it to be re-scheduled, he should contact the medical facility. The letter also notified the Veteran that "when a claimant, without good cause, fails to report for an examination or reexamination, the claim shall be rated based on the evidence of record, or even denied." A June 29, 2021 Report of General Information reflects that the RO again contacted the Veteran by phone and that the Veteran indicated that he did not want to report for an examination and wanted his claim to be evaluated based on the evidence of record only. A VA treatment note dated July 12, 2021 shows that VA again contacted the Veteran about an examination, and the Veteran stated that he was in "permanent and total" status for his back and did not understand why the RO was requesting further examination. It is noted on a Veteran Contact Sheet that the Veteran was again contacted on August 6, 2021 to inform him that the VA examination for his lumbar back was scheduled for August 19, 2021. The file however reflects that on August 23, 2021 the examination was canceled at the Veteran's request. To this date, there is no indication that the Veteran contacted the RO to reschedule, nor has he provided good cause as to why he canceled and failed to appear for his VA examination. It should also be noted that the Veteran's representative, in his October 2021 Informal Hearing Presentation (IHP), did not offer good cause for the Veteran missing the scheduled examination or otherwise request an additional opportunity to be examined. Importantly, VA's duty to assist is not a one-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 191 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Because this is a supplemental claim for an increased rating, filed in April 2014, the language in 38 C.F.R. § 3.655(b) is clear: the claim must be denied unless good cause is established as to why the claimant failed to appear. See Engelke v. Gober, 10 Vet. App. 396, 399 (1997) (stating that "when a claimant fails to appear for a scheduled reexamination pursuant to a claim for an increased rating, 38 C.F.R. § 3.655(b) mandates that the claim be denied, unless the appellant has good cause for[ ] failure to appear."). The Board finds that the Veteran did have proper notice of the VA examination. The exam scheduling letter and notice of the requirement of attendance at the examination, requests to cancel or re-schedule and the consequences of failure to attend without good cause were sent and the letter was never returned undeliverable, and the Veteran clearly had notice of the scheduled exam as he canceled the examination himself. Furthermore, the Board finds that good cause for the Veteran's failure to report for his VA examination necessary to decide the claim has not been shown. (Continued on next page.) Accordingly, the claim for an increase rating for his lumbar spine degenerative disc disease (DDD), status post compression of L1 disability must be denied as a matter of law. 38 C.F.R. § 3.655. Where the law is dispositive, the claim must be denied on the basis of absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.