Citation Nr: A21020246 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 200521-87547 DATE: December 20, 2021 ORDER Entitlement to service connection for depression (now claimed as secondary to chronic pain) is denied. FINDING OF FACT The Veteran failed without good cause to report for a VA examination scheduled in conjunction with her supplemental claim for entitlement to service connection for depression. CONCLUSION OF LAW The claim of entitlement to service connection for depression is denied because the Veteran failed (without providing good cause) to report for a VA examination scheduled in conjunction with her supplemental claim for entitlement to service connection for depression. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.655(b) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1997 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the May 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected to appeal the issue listed above and requested a direct review of the evidence considered by the RO. This restricts the Board's review to the evidence of record at the time of the October 2019 rating decision on appeal. 38 C.F.R. § 20.301 (2020). Entitlement to service connection for depression. The Veteran contends that her depression is secondary to chronic pain. 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. 38 C.F.R. § 3.655(b) applies to original or supplemental claim, or claims for increase, while 38 C.F.R. § 3.655(c) applies to running awards, when the issue is continuing entitlement. More specifically, when a claimant fails to report for a scheduled medical examination, without good cause, a supplemental claim for a benefit which was previously disallowed shall be denied without review of the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. See 38 C.F.R. § 3.655. VA's duty to assist a veteran with his or her claim and provide a VA examination is a two-way street, and failure to attend a scheduled VA examination or provide a date for which he or she is able to attend, may relieve VA of its duty to schedule any additional VA examinations relating to a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 38 C.F.R. § 3.655(b) provides that when a claimant fails to report for an examination scheduled in conjunction with, among other things, a supplemental claim for a benefit which was previously disallowed the claim shall be denied. Here, the Veteran was denied entitlement to service connection for depression in October 2015. In July 2019, she filed a VA Form 20-0995, Decision Review Request: Supplemental Claim. The claim is therefore a supplemental claim for a benefit which was previously disallowed under 38 C.F.R. § 3.655(b). The Board must address the Veteran's failure to report for a VA examination. During the appeal period, the Veteran failed to appear for her examination not once but twice. The Veteran was afforded an opportunity to undergo a VA Mental disorders examination in August 2019; however, the record indicates she did not report for this examination because she was unavailable. As noted above, by regulation, "[w]hen entitlement... to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report... action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate." 38 C.F.R. § 3.655(a). So, when the veteran misses a scheduled examination, the Board must consider (1) whether the examination is necessary to establish the entitlement to the benefit sought and (2) whether the Veteran had good cause to miss the scheduled examination. Turk v. Peake, 21 Vet. App. 565, 569 (2008). As to the necessity of a VA examination, the Board finds that a VA examination for the depression issue on appeal was necessary in order to establish service connection. As to the issue of good cause for failure to appear to the VA examinations, the Veteran reported that she missed the first and second appointment due to a conflict with her work schedule and because she was on a business trip, respectively. This does not constitute good cause. As noted above, examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. See 38 C.F.R. § 3.655. In this case, the Board does not find that the reasons given by the Veteran are of such vital urgency that they are the equivalent of the type of impediments which are considered to be "good cause" under 38 C.F.R. § 3.655. Work schedules and business trips are also the types of conflicts that are generally scheduled well in advance, and the Veteran made no attempt to reschedule the examinations in order to accommodate her schedule, nor has she subsequently requested that the examination be rescheduled. To date, neither the Veteran nor her representative has argued that the Veteran did not receive notice of the VA examinations. Accordingly, absent any other evidence to the contrary, the Board concludes that the Veteran was properly notified of the scheduled VA examinations. As the Veteran, without good cause, has failed to appear for VA examinations scheduled in conjunction with her supplemental claim for entitlement to service connection for depression, and as entitlement to this benefit cannot be established without a VA examination, the claim is denied. 38 C.F.R. § 3.655. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Oquendo, L., 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.