Citation Nr: 21010766 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 12-21 311 DATE: February 25, 2021 ORDER Entitlement to a compensable rating for residuals of a tonsillectomy is denied. FINDING OF FACT The Veteran failed to schedule and report for an examination scheduled to by VA in conjunction with her claim for increased rating for residuals of tonsillectomy; she has not shown good cause for her failure to report for this examination. CONCLUSION OF LAW Entitlement to increased ratings for residuals of tonsillectomy cannot be established without a current VA examination; the Veteran's failure to report for a scheduled examination, without good cause, warrants denial of the claim. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.655 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to November 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, May 2018, and January 2020, the case was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. In response to the Board’s most recent remand, the AOJ attempted to schedule the Veteran for an examination to determine the nature and severity of her current tonsillectomy residuals. As explained below in greater detail, the Veteran refused examination and did not request rescheduling. Accordingly, the Board finds that there has been substantial compliance with its remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). 1. Entitlement to a compensable rating for residuals of a tonsillectomy is denied. The Veteran contends that she is entitled to an increased rating for her residuals of tonsillectomy, noting that she has symptoms of hoarseness and inflammation. In January 2020, the Board determined that a contemporaneous examination was necessary to evaluate the Veteran's residuals of tonsillectomy, as the previous examinations provided failed to provide any findings relevant to the rating criteria. Accordingly, the Board directed the AOJ to schedule an examination. Following the Board’s remand, a February 2020 examination scheduling request reflects that the examination was cancelled at the Veteran’s request. 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. Subsection (b) applies to original or reopened claims or claims for increase, while subsection (c) applies to running awards, when the issue is continuing entitlement. Examples of good cause include, but are not limited to, illness or hospitalization of the claimant, and death of an immediate family member. See 38 C.F.R. § 3.655. When a claimant fails to report for an examination scheduled in conjunction with (in pertinent part) a claim for increase, "the claim shall be denied." 38 C.F.R. § 3.655(b). The Board notes that a claim for an increased initial rating is considered an "original compensation claim" and not a "claim for increase" for purposes of 38 C.F.R. § 3.655(b). Turk v. Peake, 21 Vet. App. 565, 570 (2008). In this case, however, the Veteran was granted service connection for residuals of tonsillectomy in a March 1998 rating decision. She did not appeal that decision. The instant claim stems from a subsequent claim for increase filed in March 2010, which was adjudicated by the AOJ in July 2010 rating decision. Consequently, the claim on appeal is considered a claim for increase and falls under 38 C.F.R. § 3.655(b). A February 2020 report of general contact with the Veteran reflects that she indicated that she did not want an examination. She expressed that she would no longer like to pursue an appeal. However, the Veteran has not filed a formal request to withdraw in writing as instructed. See 38 C.F.R. § 19.55. As illustrated above, the Board previously determined that the evidence of record was inadequate to assess the current severity of the Veteran's residuals of tonsillectomy. Consequently, the AOJ attempted to schedule the Veteran for an examination, and the Veteran failed to schedule and report for the examination. As the Veteran has essentially indicated that she no longer wanted an examination, she has necessarily not provided good cause for her failure to report for an examination. It is well-settled that a claimant's cooperation is essential to the development of any claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). Previous communications to the Veteran provided notice of the consequences of failing to report for a VA examination without good cause. See 38 C.F.R. § 3.655. The Board further finds that the remaining evidence, including VA treatment records, does not establish entitlement to increased ratings for the Veteran's residuals of tonsillectomy. The claimed disability is rated by analogy pursuant to the criteria of chronic laryngitis, which provide for a compensable rating on the basis of hoarseness and inflammation of thickening/polyps of the cords or mucous membranes. See 38 C.F.R. § 4.97, Diagnostic Code 6516. While the Veteran has reported hoarseness, these treatment records do not discuss and symptoms or treatment with respect to the tonsillectomy, and as indicated, prior examinations did not specify whether the Veteran’s symptoms were attributable to her tonsillectomy. Without additional evidence identifying any symptomatology attributable to the tonsillectomy and the severity thereof, the Board is unable to rate these symptoms. That is why an additional examination is needed. In sum, because an updated examination is required, and because the Veteran refused scheduling and failed to attend an examination, her claim for increased ratings for residuals of a tonsillectomy must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430(1994); 38 C.F.R. § 3.655(b). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. E. Wilkerson, 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.