Citation Nr: 21032501 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 13-26 608 DATE: May 27, 2021 ORDER Entitlement to service connection for neurological abnormalities associated with the service-connected lumbar spine disability is dismissed. Entitlement to an extraschedular rating in excess of 40 percent for the service-connected lumbar spine disability is dismissed. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. FINDINGS OF FACT 1. The Veteran did not respond to VA's June 2018 request to complete TDIU forms. 2. The Veteran was scheduled for VA examination in July 2016 and July 2018 but did not respond to requests or attend. 3. The Veteran's benefits were terminated in January 2021 due to his disappearance. CONCLUSION OF LAW The Veteran's claims are dismissed as abandoned. 38 U.S.C. § 7105; 38 C.F.R. § 3.158. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1970 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision. In September 2015, the Board denied entitlement to a schedular rating higher than 40 percent for a lumbar spine disability and remanded claims for an extraschedular rating for a lumbar spine disability, a TDIU, and service connection for neurological abnormalities associated with the service-connected lumbar spine disability. An appeal as to the denial of the claim for a higher schedular rating for lumbar spine disability was dismissed by the United States Court of Appeals for Veterans Claims (Court) in May 2016. In September 2017, the Board remanded the matter for additional development. 1. Entitlement to service connection for neurological abnormalities associated with the service-connected lumbar spine disability is dismissed. 2. Entitlement to an extraschedular rating in excess of 40 percent for the service-connected lumbar spine disability is dismissed. 3. Entitlement to a TDIU is dismissed. In September 2015, the Board remanded this matter for additional development, including obtaining VA neurological and vocational assessment examinations of the Veteran. The Veteran's claims file shows that the copy of the September 2015 Board remand that was sent to the Veteran was returned to VA as undeliverable. The envelope indicates that the Veteran moved and left no address. In May 2016, the Court dismissed an appeal filed by the Veteran and noted the Court's inability to confirm an address for the Veteran. The Regional Office attempted to schedule an examination of the Veteran in order to obtain the neurological and vocational assessments necessary to decide the Veteran's claims. The record shows that a letter was sent to the Veteran in June 2016 and returned as undeliverable in July 2016. As VA was unable to contact the Veteran, the examination was cancelled. In July 2016, the Regional Office tried to call the Veteran to obtain a current address but was unsuccessful. In July 2016, the Regional Office sent the Veteran's attorney a letter informing him that each letter sent to the Veteran's address had been returned by the U.S. Postal Service. The letter requested the Veteran's current address. No response was received. In September 2017, the Board again remanded this matter for development, including a directive for the Regional Office to attempt to undertake the prior remand instructions. The copy of the September 2017 Board remand that was sent to the Veteran was returned to VA as undeliverable. In December 2017, VA attempted to call the Veteran to verify his address but was unable to contact the Veteran. The number in the record was not the correct number for the Veteran. In December 2017, VA requested the Veteran's current address from the financial institution that receives the Veteran's benefits. The financial institution responded with the same address that was already in the claims file. In June 2018, the Regional Office sent the Veteran a letter requesting that he complete TDIU forms. No response was received. The Regional Office scheduled a VA examination for the Veteran in July 2018. He did not attend. The Regional Office continued the denial of the Veteran's claims most recently in an October 2020 Supplemental Statement of the Case (SSOC). The copy of the October 2020 SSOC sent to the Veteran was returned to VA as undeliverable Review of the Veteran's claims file shows additional, extensive, unsuccessful searches conducted to try to locate the Veteran. In a January 2021 email to the Veteran's attorney, a VA representative requested a current address for the Veteran. The VA representative shared the address information obtained from the Social Security Administration, VA Medical Center, the Veteran's financial institution, and other programs and explained that phone attempts have been unsuccessful. The VA representative explained that the next step would be to send the Veteran a proposal letter to discontinue benefits and that any help locating the Veteran would be greatly appreciated. In January 2021, the Veteran's attorney reported that he was unable to locate the Veteran and did not have any new and useful information for the search. In a January 2021 letter to the Veteran, the Regional Office proposed to terminate the Veteran's benefits due to his disappearance. The Regional Office did not receive a response to the proposal to terminate benefits. In an April 2021 letter to the Veteran, the Regional Office explained that VA terminated the Veteran's benefits on April 1, 2021 and that a valid address would be needed to reinstate the benefits. Pursuant to 38 C.F.R. § 3.158, where evidence requested in connection with an original claim or a claim for increase is not furnished within one year after the date of the request, or the Veteran fails without adequate reason to respond to an order to report for VA examination within one year from the date of request and payments have been discontinued, the claim will be considered abandoned. Here, it has been well over a year that VA has attempted to reach the Veteran with no success. As the Veteran did not provide the completed TDIU forms within a year of request, and did not appear for VA examination within a year of request, and his payment benefits have been terminated due to his disappearance, the Board concludes that the Veteran has abandoned his claims. There is therefore no allegation of error in fact or law for appellate consideration and the appeal is dismissed. 38 U.S.C. § 7105(d)(5). While a dismissal is unfortunate, the Board believes that proceeding with development of the Veteran's claims without the Veteran having the opportunity to effectively participate in his appeal would be unfair to the Veteran. The Board notes that the Veteran may refile his claims at any time under the appropriate procedures. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Purcell 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.