Citation Nr: 21009656 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-38 465 DATE: February 23, 2021 ORDER 1. Entitlement to a compensable rating for bilateral hearing loss is denied. REMANDED 2. Entitlement to service connection for a heart disability, to include ischemic heart disease (IHD), claimed as due to exposure to herbicide agents, is remanded. FINDING OF FACT The Veteran submitted a request to cancel (and thereby failed to report for) his VA examination scheduled in July 2020 in connection with his claim for a compensable rating for bilateral hearing loss, and has not provided good cause for the requested cancellation. CONCLUSION OF LAW The Veteran’s claim seeking a compensable rating for his bilateral hearing loss must be denied because he has failed (without good cause) to report for a VA examination scheduled to determine his entitlement to an increase. 38 U.S.C. § 1155; 38 C.F.R. § 3.655(b); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from September 1966 to September 1969, including service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a November 2012 rating decision. At his request he was scheduled for a hearing before the Board; he withdrew the hearing request prior to the May 2019 hearing date. In July 2019 and May 2020, the case was remanded for further development. 1. Entitlement to a compensable rating for bilateral hearing loss is denied. In the July 2019 Board remand, the Board explained that a new VA examination was necessary to determine the current severity of the Veteran’s bilateral hearing loss because the examiner on the previous, September 2015, examination indicated that there was poor inter-test reliability and that the audiometric results could not be reported. In the May 2020 Board remand, the Board explained that the Veteran was scheduled for a VA examination regarding the current severity of his bilateral hearing loss, and the examination was cancelled because he failed to show in October 2019. However, there was no indication that he was notified of the scheduled September 2019 examination by phone or written notice, and the matter was remanded for proper notification and scheduling of the requested VA examination. Pursuant to Board remand instructions, a VA examination was scheduled in July 2020, but the Veteran contacted VA and requested that the examination be cancelled. There is no indication that he had good cause for not reporting and requesting the cancellation, and he has not contacted VA to reschedule the examination. When a claimant fails (without good cause) to report for an examination (or as in this case actually requests that such examination be cancelled without good cause) scheduled in conjunction with a claim for increase, the claim shall [emphasis added] be denied. 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). The Veteran has not expressed a willingness to appear for an examination if one was to be rescheduled and has provided no explanation for his failure to appear for an examination deemed necessary and scheduled in connection with the instant claim for increase. There is no indication in the record that he did not receive notice of the VA examination, rather he received such notice and informed VA that he would not appear by requesting that the examination be cancelled. The governing regulation in such circumstances is unambiguous and unequivocal. The language “shall” mandates that the claim must be denied based on a failure to appear for the examination scheduled in July 2020. See 38 C.F.R. § 3.655(b). “The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the Board has no discretion in the matter; the law is dispositive, and the appeal seeking a compensable rating for bilateral hearing loss must be denied. See Sabonis, 6 Vet. App. at 430. REASONS FOR REMAND 2. Entitlement to service connection for a heart disability, to IHD, claimed as due to exposure to herbicide agents. The Veteran asserts that he has a current heart disability that is related to his active service. Specifically, he contends that his exposure to herbicide agents in service caused his claimed heart disability. He has reported treatment for a heart attack in November 2010 and a diagnosis of ischemic heart disease at the Bay Pines VA hospital. On September 2012 VA examination, the examiner indicated that the Veteran did not have IHD. The examiner noted that review of the Veteran’s service treatment records (STRs), VA treatment records, and private medical treatment records found they were silent for a history of a heart disorder. However, the examiner also reported that the Veteran had a diagnosis of IHD in 2011 and a myocardial infarction in 2011. Given these discrepancies, the July 2019 Board remand directed that a medical advisory opinion be obtained that both clarified whether or not the Veteran had a current heart disability and, if found, such heart disability was related to his service. In the May 2020 remand, the Board indicated that the issue of service connection for the Veteran’s heart disability was previously remanded for an addendum opinion as to the nature and etiology of any heart disease. The examination was cancelled in October 2019 because the Veteran failed to appear. Subsequently, an addendum medical opinion was not obtained. The Board noted that the matter was remanded for an addendum opinion, not a VA examination, and that the Veteran’s attendance does not appear to have been necessary for such opinion. Therefore, the matter was again remanded for a medical advisory opinion in compliance with prior remand instructions. In July 2020, the Veteran contacted VA and requested cancellation of the scheduled VA heart examination, and an addendum medical opinion was not obtained. The Board again notes the matter was remanded for an addendum opinion (addressing whether a diagnosis of IHD is adequately established by evidence in the claims file-if a diagnosis is not supported by clinical data, it would not be considered valid) not a VA examination. The Veteran’s attendance is not necessary for such an addendum opinion, and an addendum opinion was not provided in accordance with previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, remand for an adequate medical advisory opinion is again necessary. The matter is REMANDED for the following: Arrange for the Veteran’s claims file to be forwarded to an appropriate clinician in order to obtain an addendum opinion as to the nature and etiology of the Veteran’s heart disability. Upon review of the record, the provider should provide opinions that respond to the following: (a) Identify (by diagnosis) each heart disability entity found (or shown by the record during the pendency of the instant claim), to specifically include IHD. If IHD is not diagnosed, reconcile such finding with the diagnosis of IHD noted on the September 2012 VA examination. If that diagnosis is not supported by/inconsistent with clinical data, i.e., is considered invalid, it must be so stated, with explanation. (b) Identify the likely etiology for each heart disability (other than IHD-which would be presumed to be due to exposure to herbicide agents) diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that it arose during (was first manifested in, or is otherwise etiologically related to) the Veteran’s active service (to include his exposure to herbicide agents)? (c) If a heart disability is determined to be unrelated to the Veteran’s service, should identify the etiology that is considered to be more likely, and explain why that is so). All opinions must include rationale that cites to supporting factual data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.