Citation Nr: 21010438 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 20-16 170 DATE: February 24, 2021 ORDER Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to an evaluation in excess of 10 percent for a lumbar spine disability is denied. Entitlement to an evaluation in excess of 10 percent for a left palm painful scar is denied. Entitlement to an evaluation in excess of 10 percent for tinnitus is denied. Entitlement to a compensable evaluation for hypertension is denied. Entitlement to a compensable evaluation for residuals of right wrist ulnar styloid unfused apophysis is denied. Entitlement to a total disability rating based on unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran, without good cause, failed to report for a necessary VA examination scheduled to evaluate the current severity of his PTSD disability. 2. The Veteran, without good cause, failed to report for a necessary VA examination scheduled to evaluate the current severity of his lumbar spine disability. 3. The Veteran, without good cause, failed to report for a necessary VA examination scheduled to evaluate the current severity of his left palm painful scar. 4. The Veteran, without good cause, failed to report for a necessary VA examination scheduled to evaluate the current severity of his tinnitus. 5. The Veteran, without good cause, failed to report for a necessary VA examination scheduled to evaluate the current severity of his hypertension. 6. The Veteran, without good cause, failed to report for a necessary VA examination scheduled to evaluate the current severity of his right wrist ulnar styloid unfused apophysis. 7. The Veteran failed, without good cause, to report for VA examinations that were necessary to determine whether his service connected disabilities alone rendered him incapable of obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The claim for entitlement to an increased rating for PTSD lacks legal merit due to the Veteran’s failure to report for a necessary VA examination and is denied as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655 (b). 2. The claim for entitlement to an increased rating for a lumbar spine disability lacks legal merit due to the Veteran’s failure to report for a necessary VA examination and is denied as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655 (b). 3. The claim for entitlement to an increased rating for a left palm painful scar lacks legal merit due to the Veteran’s failure to report for a necessary VA examination and is denied as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655 (b). 4. The claim for entitlement to an increased rating for tinnitus lacks legal merit due to the Veteran’s failure to report for a necessary VA examination and is denied as a matter of law; the Veteran is currently in receipt of the highest possible schedular rating for tinnitus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655 (b). 5. The claim for entitlement to an increased rating for hypertension lacks legal merit due to the Veteran’s failure to report for a necessary VA examination and is denied as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655 (b). 6. The claim for entitlement to an increased rating for a right wrist disability lacks legal merit due to the Veteran’s failure to report for a necessary VA examination and is denied as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655 (b). 7. The claim for entitlement to a TDIU lacks legal merit due to the Veteran’s failure to report for necessary VA examinations and is denied as a matter of law. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655 (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2000 to May 2004, and from September 2005 to February 2012. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Increased Ratings Following a claim for entitlement to a TDIU received in September 2018, the RO scheduled the Veteran for VA examination to assess the severity of his service-connected disabilities in October 2018. The Veteran failed to report for the scheduled examination. He did not respond or explain in any way the reason for his failure to report to the examination. In November 2018, a Veterans’ Service Representative called the Veteran to obtain a good cause for failure to report to the examinations, but there was no response. In December 2019, his current representative submitted a brief indicating the Veteran continued to seek increased ratings with an accompanying Affidavit from the Veteran. These did not contain a good cause explanation for the failure to appear for the scheduled examination. Thereafter, and despite the lack of response, VA attempted to reschedule the examinations in March 2020, prior to issuance of the statement of the case (SOC), however, the Veteran again did not appear. Despite the filing of a substantive appeal in April 2020 after receiving notice in the March 2020 SOC of failure to report to examinations; and multiple extension requests, no good cause has been advanced for the Veteran’s failure to report to his scheduled VA examinations. The Board emphasizes that the duty to assist a claimant is not a one-way street, and in this case, the Veteran has failed to cooperate in the development of his claim. Olsen v. Principi, 3 Vet. App. 480 (1992); 38 C.F.R. § 3.655. When entitlement or continued 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 for such examination, or reexamination, action shall be taken in accordance with the type of claim. 38 C.F.R. § 3.655 (a). Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655 (b). The first question for resolution here is whether entitlement to the benefits sought cannot be established or confirmed without current examinations. In this regard, the Board notes that the latest VA examinations of record for the Veteran’s disabilities are dated in July 2011, nearly ten years prior to the date of this decision, and seven years prior to the Veteran’s application for increased ratings. The Board acknowledges that the Veteran underwent a PTSD review examination in March 2014, but this evaluation does not demonstrate the current severity of the Veteran’s disabilities or their current impact on his ability to maintain substantially gainful employment. In an April 2019 Affidavit, submitted in November 2019, the Veteran alleged that his disabilities had worsened in severity. In response, VA scheduled him for examinations in order to assess the current severity of his conditions. These examinations were necessary for VA to adequately evaluate whether entitlement to increased ratings and/or a TDIU was warranted. The Board acknowledges that if the benefits could be granted without further information, scheduling of VA examinations would be unnecessary. However, here, the examinations were necessary to evaluate the Veteran’s assertions of worsening and to determine the extent of worsening if found. The evidence of record is not sufficient to reach a decision on these issues. Regarding a TDIU, the claim for entitlement to a TDIU is a claim for a higher disability evaluation and is not an original compensation claim. The disposition of a TDIU claim is entirely dependent on the level of functional impairment caused by disabilities which are already service-connected. The basis for scheduling VA examinations in this case was to determine the current severity of the Veteran’s service-connected disabilities to determine if a TDIU rating or any increased ratings for the service-connected disabilities underlying that claim were warranted. Here, the Veteran’s rating claims are not original claims for compensation. Service connection for the Veteran’s disabilities had already been granted. The current rating issues arise from a TDIU claim which was interpreted by the RO as a claim for an increased rating for all the Veteran’s service-connected disabilities. 38 C.F.R. § 3.655 is clear that when an examination is scheduled in connection with claims for increase and the Veteran fails to appear, the claims shall be denied. (Continued on Next Page) Because of the Veteran’s failure to report for VA examinations without good cause, there is no doubt to be resolved and the claims of entitlement to an increased rating for PTSD, a lumbar spine disability, a left palm painful scar, tinnitus, hypertension, right wrist ulnar apophysis, and a TDIU must be denied as a matter of law. 38 C.F.R. § 3.655 (b). C.B. Iwanowski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Comninos 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.