Citation Nr: 21007883 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 10-47 078 DATE: February 11, 2021 ORDER Entitlement to a compensable initial rating for bilateral hearing loss on an extraschedular basis is denied. REMANDED Entitlement to an initial disability rating greater than 10 percent for hiatal hernia with gastroesophageal reflux disease (GERD), to include on an extraschedular basis, is remanded. FINDING OF FACT The Veteran failed to report for an examination scheduled on his behalf in conjunction with his appeal seeking a compensable initial disability rating for service-connected bilateral hearing loss and has not presented good cause; therefore, that appeal must be denied as a matter of law. CONCLUSION OF LAW The claim seeking a compensable initial disability rating for service-connected bilateral hearing loss is denied as a matter of law. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.655. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from June 1953 through July 1972. The Board has considered the Veteran’s claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to a compensable initial rating for bilateral hearing loss on an extraschedular basis 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 an examination that has been scheduled for this purpose, 38 C.F.R. § 3.655 provides for specific actions that must be taken. Specifically, where, as here, the examination was scheduled in conjunction with an increased rating claim, the claim must be denied as a matter of law. 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. Id. at (a). The Board remanded the claim seeking a higher rating for bilateral hearing loss on an extraschedular basis in May 2013 for the Agency of Original Jurisdiction (AOJ) to consider the claim on an extraschedular basis. Thereafter, the AOJ scheduled the Veteran for a VA examination to assess the severity of his bilateral hearing loss. The Veteran first failed to report for a December 2015 VA audiological examination. The Veteran was notified of his failure to report, and contacted the VA Medical Center to reschedule the appointment. The VA examination was rescheduled for March 2016, but the Veteran again failed to report for the examination. The Veteran has not provided any explanation for his failure to report for the March 2016 VA examination and has not requested that his examination be rescheduled. Unfortunately, the Veteran’s cooperation in developing the record properly is essential to a fair adjudication of his claim and, absent any reason for missing the examination scheduled on his behalf, the Board is bound by the governing law. Therefore, by law, the claim for an increased rating for bilateral hearing loss on an extraschedular basis must be denied. REASONS FOR REMAND Entitlement to an initial disability rating greater than 10 percent for hiatal hernia with GERD, to include on an extraschedular basis is remanded. In May 2013, the Board remanded the Veteran’s claim for an increased disability rating for GERD to the AOJ in order for the AOJ to consider the Veteran’s claim on an extraschedular basis. However, the most recent Supplemental Statement of the Case (SSOC), dated in March 2016, does not reflect that the AOJ considered the claim on an extraschedular basis. The Board regrets the delay of an additional remand; however, the Board errs as a matter of law when it fails to ensure compliance with prior remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Veteran’s claim for entitlement to an initial rating greater than 10 percent for hiatal hernia with GERD, to include on an extraschedular basis, must be remanded for compliance with the Board’s prior remand directives. The matters are REMANDED for the following action: Readjudicate the Veteran’s claim for entitlement to an initial disability rating greater than 10 percent for hiatal hernia with GERD on an extraschedular basis. Such consideration must provide citations to and discussion of the provisions of 38 C.F.R. § 3.321(b)(1), along with clear reasons and bases for all determinations. If the claim is not fully granted, a Supplemental Statement of the Case (SSOC) must be provided to the Veteran and his representative, and the Veteran must be given an appropriate time period for response before the case is returned to the Board for appellate consideration. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.