Citation Nr: 21023136 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-23 282 DATE: April 20, 2021 ORDER Entitlement to a compensable rating for left hip limitation of extension is denied. Entitlement to a compensable rating for left hip limitation of flexion also is denied. FINDINGS OF FACT 1. The Veteran, without good cause, failed to report for a VA examination scheduled on remand to reassess the severity of his left hip limitation of extension and flexion. 2. The examination was needed to assist in determining whether higher ratings are warranted for these impairments. CONCLUSION OF LAW The criteria are not met for compensable ratings for the left hip limitation of extension and flexion. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5251, 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Marine Corps Reserves on inactive duty training (INACDUTRA) from June 2008 to February 2009 and on active duty from June 2009 to July 2010. These claims were most recently before the Board in November 2020 when they were remanded for further development, to include obtaining additional clinical records and a VA examination reassessing the severity of the Veteran’s disabilities to comply with the Court’s holding in Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), concerning his pain and its consequent functional impact; that additional development had been previously directed in a June 2020 remand but had not been accomplished, in turn, prompting the additional remand in November 2020. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also directed that the examination comply with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016). Pursuant to the Board’s November 2020 remand directive, the Veteran was scheduled for an examination in February 2021, but he failed to report for it. That examination, obviously, was scheduled during the Coronavirus Disease 2019 (COVID-19) pandemic. During the pandemic, a Veteran who would prefer not to be examined in person may reschedule the examination without prejudice to his claim. Moreover, in some circumstances, if an in-person examination is not required, the examination may be performed by telephone. The Veteran was notified of his examination by telephone on December 29, 2020, electronic mail (email) on December 29, 2020, text on December 29, 2020, courier on December 31, 2020, and then again by email, telephone, and text on January 6, 2021. The claims file also includes a notice that the examination was cancelled at his request. He has not provided any reason or explanation of why he failed to appear for the examination or to have the examination rescheduled or to ascertain whether it could possibly be done virtually over the phone. If he had chosen not to attend the examination on the scheduled date and at the scheduled time due to COVID-19, this would not be prejudicial to him, but he has not provided any reason for failing to attend or asked for obtainment of the needed information by other means. According to VA regulation, when a claimant, without good cause, fails to report for a necessary examination scheduled in conjunction with a claim for an increase in the rating for a service-connected disability, the claim shall be denied. See 38 C.F.R. § 3.655 (directing the mandatory denial in this circumstance given the express “shall” language used in this governing VA regulation).  When a veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the Veteran lacked good cause to miss the scheduled examination. See Turk v. Peake, 21 Vet. App. 565 (2008). See also Rouse v. Wilkie, 2020 U.S. App. Vet. Claims Lexis 1479 (July 31, 2020). Here, the Board had found that reexamination of the Veteran’s left hip was necessary to reassess the severity of his disability and, specifically, the point of pain on range of motion testing, and passive range of motion test results, to ensure compliance with the holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). He has not provided justifiable reason or explanation (i.e., the required “good cause”) for his failure to report for the needed examination that was scheduled in February 2021 following the Board’s remand of these claims. Therefore, his claims for increased (compensable) ratings for his left hip extension and flexion must be denied according to § 3.655. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.