Citation Nr: 0005709 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 96-09 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from September 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1995 rating decision of the Department of Veterans Affairs (VA) Medical and Regional Office Center (MROC) in Wichita, Kansas. The case returns to the Board following a remand to the VAMROC in June 1997. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. The medical evidence of record is not adequate for rating purposes. 3. The veteran failed to report for VA examinations scheduled in December 1995, March 1996, November 1997, and December 1997. There is no evidence of record showing good cause for failing to report. CONCLUSION OF LAW The claim of entitlement to a permanent and total disability rating for non-service connected pension purposes is denied for failure to report for scheduled VA examinations. 38 C.F.R. §§ 3.326, 3.655 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to the claim. See Vargas-Gonzales v. West, 12 Vet. App. 321, 329 (1999) (finding that a pension claim was well grounded when the veteran had qualifying wartime service, he completed the VA pension application as to his income, he might have the requisite total disability rating when all of his non-service connected disabilities were properly evaluated, and there was plausible evidence as to unemployability). The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. A pension is available to a veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to non-service connected disabilities which are not the result of his own willful misconduct. 38 U.S.C.A. § 1521(a); 38 C.F.R. § 3.342(a). There is total disability when there is present any impairment of the mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A disability is permanent if the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). See 38 U.S.C.A. § 1502(a) (defining permanent and total disability). Where there is a well grounded claim for disability pension but medical evidence accompanying the claim is not adequate for rating purposes, a VA examination will be authorized. Individuals for whom an examination has been scheduled are required to report for the examination. 38 C.F.R. § 3.326(a). Provided it is otherwise adequate for rating purposes, any hospital report or any examination report from any government or private institution, or a statement from a private physician, may be accepted for rating a claim without further examination. 38 C.F.R. § 3.326(b) and (c). Generally, when entitlement to a benefit cannot be established without a current VA examination, and a claimant, without good cause, fails to report for such examination, action specified by regulation is required. 38 C.F.R. § 3.655(a). 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. Specifically, when an examination is scheduled in conjunction with an original claim other than for compensation, and the claimant fails to report, the claim shall be denied. 38 C.F.R. § 3.655(b). In this case, in connection with the original July 1995 pension claim, the VAMROC obtained medical records from several private medical facilities, as well as a report of VA outpatient treatment. A review of this medical evidence shows that it is inadequate for purposes of rating the veteran's non-service connected disabilities. Specifically, the evidence from Newman Young Clinic and Mercy Hospital, dated from 1987 to 1991, is simply outdated. The VA outpatient records from 1993 and evidence from Michael J. McKenna, M.D., from 1994 and 1995, though slightly more recent, are similarly outdated. The veteran has not indicated that he has sought treatment more recently or submitted additional evidence. In addition, pursuant to the Board's remand, the VAMROC secured records from the Social Security Administration. The records show that the veteran was denied Social Security disability benefits in June 1995 and again in November 1995. Many of the accompanying medical records are duplicates of the private records discussed above. The evaluations secured specifically for purposes of the disability determination were performed in 1995 and are inadequate to evaluate the veteran's current disability status. Because the medical evidence is inadequate for rating purposes, a VA examination is necessary to properly adjudicate the veteran's claim. 38 C.F.R. § 3.326(a). The claims folder reveals that the veteran was scheduled for VA examinations in December 1995, March 1996, November 1997, and December 1997. He failed to report for each one of these examinations. In his February 1996 substantive appeal, the veteran indicated that he failed to report for the December 1995 VA examination because he was sometimes "physically unable to rely on [his] motor skills." He has not offered any explanation as to his failure to report for the three other VA examinations. There is no indication that the notices were sent to an incorrect address or other reason that the veteran might not have received the notices. Accordingly, 38 C.F.R. § 3.655(b) requires that the veteran's claim for non-service connected pension benefits be denied. Action by the Board and VA is bound by the applicable law and regulations as written. 38 U.S.C.A. § 7104(c). Finally, the Board notes that the final supplemental statement of the case issued in May 1999 and mailed to the veteran's last known address was returned as undeliverable. A July 1999 report of contact showed that the veteran's representative did not have a more current address. Therefore, the VAMROC has satisfied its duty to inform the veteran of its decisions. ORDER Entitlement to a permanent and total disability rating for non-service connected pension purposes is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals