Citation Nr: 21070600 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-48 211A DATE: November 24, 2021 ORDER Entitlement to an effective date earlier than April 10, 2013, for the reinstatement of disability compensation for service-connected bronchitis is denied. FINDINGS OF FACT 1. The Veteran did not report to a to a July 1969 routine examination to evaluate his service-connected bronchitis, which was not static in nature; he was notified that his benefits were terminated by an August 1969 administrative decision of the agency of original jurisdiction (AOJ). 2. The Veteran did not appeal the August 1969 administrative decision, nor did he inform the Department of Veterans Affairs (VA) of his willingness to report for an examination within one year. 3. The Veteran filed a claim to resume his benefits on April 10, 2013; the competent and credible evidence does not establish that the Veteran's service-connected bronchitis existed in the former compensable degree during the period from discontinuance of the benefits until his claim to resume benefits. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than April 10, 2013, for the reinstatement of disability compensation for service-connected bronchitis are not met. 38 U.S.C. §§ 4005(c) (1958, Supp. 1962), 5107 (2018); 38 C.F.R. §§ 3.104, 3.655, 19.118, 19.153 (1969), 3.102 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1966 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by a VA regional office, which is the agency of original jurisdiction (AOJ). The Veteran seeks an effective date earlier than April 10, 2013, for the reinstatement of compensation for his service-connected bronchitis, rated as 10 percent disabling since service connection was awarded in 1967. By way of background, the record reflects that service connection for bronchitis was awarded in a September 1967 rating decision effective May 2, 1967, the day after the Veteran's separation from service. September 1967 Rating Decision. In June 1969, the AOJ requested a routine future examination as the nature of the Veteran's bronchitis was not considered to be static. June 1969 VA 21-2507a Request for Physical Examination. The Veteran did not report for the examination, scheduled for July 31, 1969. See August 1969 VA 21-2507a. In August 1969, the Veteran called the AOJ to report that he was unable to attend the examination due to extenuating circumstances, and to inform VA that he was planning to move to Europe for the next two years. August 1969 Third Party Correspondence. As such, it is clear the Veteran received notification of the scheduled examination. There is no indication that he requested to be scheduled for examination at any point, either prior to his departure or once he arrived in Europe. In a September 1969 letter, VA notified the Veteran of the suspension of his compensation due to his failure to report for the routine future examination and informed him that, in order to have his payment restored, he needed to inform VA of his willingness to report for examination. September 1969 Notification Letter. The record does not contain any returned mail, and the Veteran did not inform VA of a new European address until November 1969. November 1969 VA 572 Request for Change of Address. Further, the Veteran submitted a copy of his expired passport. March 2016 Identification Materials. The passport was not issued until August 1969, after the missed examination. Further, the passport appears to reflect that he entered the Netherlands, where he resided for the next several years, in December 1969. Id. In April 2013, the Veteran requested that his benefits be reinstated. April 2013 VA 21-4138 Statement in Support of Claim. In a May 2014 rating decision, VA determined that a 10 percent rating was warranted for bronchitis and that benefits would be reinstated as of the date of the Veteran's April 2013 claim. May 2014 Rating Decision. The Veteran does not dispute that he filed his claim for reinstatement of benefits on April 10, 2013, nor does he assert that he appealed the September 1969 decision terminating his benefits. In support of his appeal, the Veteran has essentially stated only that he never willfully gave up or reduced his compensation. See, e.g., May 2015 VA 21-4138. At no point has he alleged nonreceipt of the notification letter informing him that his benefits would be terminated or of any other pertinent mailing, nor has he alleged that he indicated a willingness to report for examination at any point prior to April 10, 2013. Turning to the propriety of the discontinuance, at the time the Veteran's benefits were discontinued, the law was clear that failing to participate in VA examinations could and would result in the discontinuation of benefits. In that regard, 38 C.F.R. § 3.655(a) (1969) read: "When a veteran without adequate reason fails to report for Veterans Administration examination, including periods of hospital observation requested for pension or compensation purposes, the awards to the veteran and any dependents will be discontinued, except as provided in paragraph (b) of this section, effective date of last payment." Paragraph (b) references a situation where the veteran is in receipt of compensation for disabilities which are both static and nonstatic in nature. Id. In this case, the Veteran was only in receipt of compensation for bronchitis, which was nonstatic in nature. See September 1967 Rating Decision. As noted above, there is no indication of record that the Veteran did not receive the notification letter informing him that he needed to report for examination or the September 1969 administrative decision terminating his benefits. While after the fact he stated he could not attend the July 1969 examination due to "extenuating circumstances," he did not request a new examination. Accordingly, the benefits were properly terminated pursuant to regulation and the Veteran was properly notified of the termination. 38 C.F.R. § 3.655(a) (1969). The Board also finds that the September 1969 administrative decision terminating the Veteran's benefits is final. In that regard, there is no evidence that any mail was returned as undeliverable by the United States Postal Service and the Veteran did not provide an updated address until November 1969. As he did not express disagreement with the September 1969 administrative decision, of which he was properly notified, until his request to have his benefits reinstated in April 2013 nor provide any additional evidence, that decision became final. 38 U.S.C. § 4005(c) (1958, Supp. 1962); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1969). Turning now to the proper date for resumption of benefits, at the time of the discontinuance, 38 C.F.R. § 3.655(c) provided: "When payments have been discontinued because of failure to report for examination, payments will be resumed effective the day following the date of last payment if the evidence clearly establishes that during the period of his failure to report the disability existed in the former compensable degree and the claim was not abandoned and the rating agency confirms and continues the prior evaluation." (emphasis added). Effectively, the AOJ's May 2014 determination that the Veteran's 10 percent rating for bronchitis should be resumed was that there was no change in evaluation to the Veteran's bronchitis. This finding contemplates 38 C.F.R. § 3.655 (c) (1969). However, after careful review of the evidence of record, the Board finds that a resumption of disability compensation benefits since September 1969 is not warranted because the evidence does not "clearly establish" that during the period of his failure to report the disability existed in the former compensable degree (10 percent). See 38 C.F.R. § 3.655(c) (1969). The Veteran's bronchitis was rated as 10 percent disabling in September 1969 pursuant to 38 C.F.R. § 4.96, Diagnostic Code 6809 (1969). A 10 percent rating was afforded for moderate bronchitis with considerable night or morning cough, slight dyspnea on exercise, and scattered bilateral rales. Id. Bronchitis is now rated under 38 C.F.R. § 4.96, Diagnostic Code 6600 (2020), and ratings are based on objective respiratory testing. Regardless of criteria, there is no medical or lay evidence in the record which reflects the level of severity of the Veteran's bronchitis from August 1967, when it was last evaluated by VA, until April 2014, when the Veteran underwent VA examination in connection with his request to resume benefits. Based on the above, the Board does not find that the evidence clearly establishes that from September 1969 (when his benefits were discontinued) to April 2013 (when his benefits were resumed), the Veteran's disability existed in the former compensable degree. There is no evidence that the Veteran continued to experience any symptoms of bronchitis or received medical treatment for bronchitis in the nearly 44 years since his benefits were suspended. Significantly, he has not provided any other lay or medical evidence to the contrary. Accordingly, the Board does not find that the evidence "clearly establishes" that the Veteran's disability existed in the former compensable degree, as required by 38 C.F.R. § 3.655(c) (1969) for resumption of benefits effective the day following the last payment. It would be pure speculation, at best, to find otherwise. As such, the Veteran is not entitled to a resumption of benefits retroactive to September 1969, nor is there any basis on which to resume benefits at any time prior to April 10, 2013, when the Veteran made an application for such and subsequently underwent VA examination. In light of the foregoing, the Board finds that entitlement to an effective date earlier than April 10, 2013, for the resumption of compensation for service-connected bronchitis is not warranted. Accordingly, the Veteran's appeal must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. D. Bruce, 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.