Citation Nr: 21005716 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-15 492 DATE: February 2, 2021 ORDER Entitlement to service connection for a left foot disability is denied. Entitlement to service connection for headaches is denied. FINDINGS OF FACT 1. The Veteran without good cause failed to appear at the VA examination for left foot disability on November 9, 2010. 2. The Veteran without good cause failed to appear at the VA examination for headache on November 10, 2010. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left foot disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310, 3.655(b) (2019). 2. The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310, 3.655(b) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from June 2004 to September 2008 including service in the Gulf War. This matter comes before the Board of Veterans’ Appeals on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter for further development in April 2019. Legal Criteria Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may also be granted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Id. 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. Title 38 C.F.R. § 3.655(b) applies to original or reopened claims or claims for increase, while 38 C.F.R. § 3.655(c) applies to running awards, when the issue is continuing entitlement. When a claimant fails to report for an examination scheduled in conjunction with a claim for increase or a reopened claim for a benefit which was previously disallowed, the claim shall be denied. 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or death of an immediate family member. See 38 C.F.R. § 3.655(a). In accordance with the April 2019 remand directives, the Veteran was scheduled for VA examinations to determine service connection for his left foot disability and headaches. The Veteran and his representative were notified in October 2019 and the Veteran failed to attend both exams in November 2019. There is no evidence that the notice of the scheduled examination was not received by the Veteran. None of the correspondence sent to the Veteran either before or after the scheduled examination has been returned as undeliverable, indicating that the current address of record is correct. See Ashley v. Derwinski, 2 Vet. App. 62 (1992); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). To date, neither the Veteran nor his representative have provided good cause for why the Veteran failed to attend the scheduled examination. 38 C.F.R. § 3.655(a). In fact, days after the scheduled exam date, the Veteran submitted direct deposit enrollment form to change the financial institution in which his benefits were to be deposited. Furthermore, the Veteran’s representative submitted an Appellate Brief which did not provide good cause for the Veteran’s missed appointment. There are several correspondences between the VA and the Veteran before and after the exam request notification were sent, and there is no evidence of undeliverable or returned mail. 1. Entitlement to service connection for left foot disability. The Veteran contends that his left foot disability should be service connected. The Veteran’s claim was remanded because the November 2010 VA examination report of record did not provide a sufficient opinion regarding the Veteran’s claimed foot disability. The examiner did not address the issue of aggravation of a preexisting condition, pes planus, which was asymptomatic at induction but did cause the Veteran to seek treatment during active duty service. The Board determined further development was needed to determine aggravation of the Veteran’s pre-existing condition. The Veteran was scheduled for a new VA examination, which he failed to attend. VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must cooperate in VA's efforts to obtain evidence needed to adjudicate his claims, including keeping his contact information up to date, attending scheduled VA examinations, and promptly communicating with VA why he cannot attend a scheduled VA examination. The Veteran has failed to report, without good cause, for scheduled VA examinations in conjunction with his claim for service connection. As such, pursuant to 38 C.F.R. § 3.655(b), the Veteran’s claim for service connection must be denied. 2. Entitlement to service connection for headaches. The Veteran contends his headaches should be service connected. The Veteran’s claim for service connection was previously remanded by the Board due to a finding that the medical opinion of record was inadequate. The Veteran sought treatment on several occasions while on active duty service. In June 2005 the Veteran reported being hit in the head following a flight in the barracks. In August 2007 the Veteran reported ongoing headaches. In an August 2017 VA examination, the examiner did not provide a thorough rationale for its etiological opinion. The Board previously determined that the examiner did not consider the Veteran’s active duty service as a whole. The examiner’s opinion did not address the Veteran’s lay statements regarding ongoing symptomatology. The Board remanded for further development. The Veteran was scheduled for a new VA examination, which he failed to attend. VA's duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must cooperate in VA's efforts to obtain evidence needed to adjudicate his claims, including keeping his contact information up to date, attending scheduled VA examinations, and promptly communicating with VA why he cannot attend a scheduled VA examination. The Veteran has failed to report, without good cause, for scheduled VA examinations in conjunction with his claim for service connection. As such, pursuant to 38 C.F.R. § 3.655(b), the Veteran’s claim for service connection must be denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.