Citation Nr: 21008123
Decision Date: 02/11/21	Archive Date: 02/11/21

DOCKET NO. 17-02 358
DATE: February 11, 2021

ORDER

Entitlement to a compensable rating for bilateral hearing loss is denied.

FINDING OF FACT

The Veteran, without good cause, failed to report for a November 2020 VA examination related to his claim for an increased rating for his bilateral hearing loss.

CONCLUSION OF LAW

The claim for an increased rating for the Veteran’s bilateral hearing loss is denied as a matter of law. 38 C.F.R. § 3.655.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from December 1965 to August 1968. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a January 2014 rating decision. A hearing with the undersigned Veterans Law Judge was conducted in November 2019; the claim was subsequently remanded in a July 2020 Board decision and has returned to the Board. 

The Veteran was service-connected for bilateral hearing loss in a January 2014 rating decision effective April 26, 2013, and he has continuously pursued a higher rating.

Based on the Veteran’s hearing testimony that his hearing had worsened since his November 2013 VA examination, the Board remanded the claim for a new examination. The Veteran did not attend the subsequently scheduled examination; his given reason was that he is already in receipt of a 100 percent disability rating. 

Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with a claim for increase without providing good cause, the claim shall be denied. Examples of good cause include, but are not limited to, such things as the illness or hospitalization of the claimant, or death of an immediate family member. 38 C.F.R. § 3.655 (a). The Board finds that the Veteran’s provided reason does not constitute the requisite good cause for his failure to report to the scheduled VA examination. 

The Veteran’s claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (Where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought.); see also 38 C.F.R. § 3.655 (b) (directing that, when a claimant, without good cause, fails to report for an examination scheduled in conjunction with a claim for increased rating, the claim shall be denied. (Emphasis added)).

 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Carroll, 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.