Citation Nr: 21031105 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-05 785 DATE: May 20, 2021 ORDER Entitlement to an increased rating in excess of 50 percent for chronic adjustment disorder with depression and mixed anxiety is denied. FINDING OF FACT The Veteran did not report to VA examinations scheduled in October 2020 and May 2021 for his increased rating claim for chronic adjustment disorder and has not provided good cause for his failure to report. CONCLUSION OF LAW The criteria for an increased rating in excess of 50 percent for chronic adjustment disorder with depression have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.655 (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1999 to December 2004. In May 2017, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. The claim was brought before the Board in February 2018 and was remanded for further development. Entitlement to an Increased Rating: Adjustment Disorder The Veteran contends that his service-connected chronic adjustment disorder with depression and mixed anxiety is more severe in nature, and thus, warrants a rating in excess of 50 percent. 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. When a claimant fails to report for an examination scheduled in conjunction with a claim for increase or a reopened claim for a benefit which was previously disallowed, the claim shall be denied. 38 C.F.R. § 3.655 (b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. Id. Here, the Veteran was last evaluated in April 2015. During the Veteran's May 2017 Board hearing, the Veteran reported that his condition had gotten worse since his last examination. He reported being more isolated and having more panic attacks. Thus, the Board remanded the claim in February 2018 for an updated examination to determine the current severity of his condition. In accordance with the Board's February 2018 remand, the Veteran was scheduled for a VA examination on October 6, 2020. However, the Veteran did not attend, and the medical center noted several attempts to contact the Veteran with no answer. The evidence shows the Veteran was contacted by phone by the Regional Office in January 2021 to discuss his failure to report to the examination and possible rescheduling. The Regional Office noted that the Veteran informed them that he was currently permanent and total disability rated and therefore, did not wish to pursue his pending appeal for adjustment disorder. The Regional Office notified the Veteran that he would have to send a withdrawal statement and stated they would send him a letter stating such. The Regional Office then sent the Veteran a notification letter dated January 13, 2021 informing the Veteran that if he wished to withdraw his appeal for increased rating for adjustment disorder, he needed to submit a written statement. The Veteran never submitted the statement. The VA medical center attempted to again reschedule the Veteran for a VA examination. The Veteran was rescheduled for May 12, 2021 and the medical center documented several attempts to contact the Veteran, to include by telephone, text, and mail. There is no documentation showing the Veteran ever responded to the notification attempts nor has any communication been received from the Veteran. The Board notes that the Veteran has provided no information or cause as to why he did not attend his scheduled examinations, to include following the Supplemental Statement of the Case which informed the Veteran he did not respond to the request for a withdrawal statement and he did not indicate he wanted to attend a VA examination. The Board recognizes the April 2021 Appellate Brief submitted by the Veteran's representative that contended that the Regional Office did not actually document whether the Veteran was asked to appear before another VA examination or if he stated he would not appear during the January 2021 phone contact. However, as noted above, the VA medical center attempted to schedule the Veteran for a VA examination in May 2021 and made several attempts to notify the Veteran and the Veteran still has not responded. Thus, the Board finds there was no duty to assist error. The Board also notes that no mail has been returned and the notices were sent to the address on file. As good cause has not been alleged, the Board finds that good cause is not shown. See 38 C.F.R. § 3.655. As good cause is not demonstrated for the Veteran's failure to report, and the examination was scheduled in conjunction with a claim for increase, the claim must be denied. See 38 C.F.R. § 3.655 (b). The Board emphasizes that the duty to assist a claimant is not a one-way street, and in the instant case, the Veteran has failed to cooperate to the full extent in the development of his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, due to the Veteran failing to report to the scheduled examinations for his increased rating claim, as well as not showing good cause for his failure to appear, denial of an increased rating for chronic adjustment disorder with depression and mixed anxiety based on 38 C.F.R. § 3.655 (b) is warranted. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.