BVA9507350 DOCKET NO. 92-14 748 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable evaluation for right anterior compartment syndrome/overuse syndrome. 2. Entitlement to a compensable evaluation for left anterior compartment syndrome/overuse syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Associate Counsel INTRODUCTION The veteran served on active duty from May 1988 to February 1991, with an additional three years of prior active service. This appeal arises from an April 1991 rating decision of the St. Petersburg, Florida, regional office (RO). That rating decision granted service connection for right anterior compartment syndrome/overuse syndrome and left anterior compartment syndrome/overuse syndrome and assigned separate noncompensable evaluations for each disability. In March 1993, the Board of Veterans' Appeals (Board) remanded the case to obtain additional evidence and to afford the veteran an opportunity to have another VA examination. Following the veteran's failure to respond to the RO's request for additional evidence and his failure to report for the scheduled VA examination, the RO returned the case to the Board. In December 1993, the Board again remanded the case to ensure that the RO's notice of examination and request for additional evidence were sent to the veteran's correct address. The veteran has again failed to respond to the RO's request for additional evidence and to report for the scheduled VA examination. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to compensable evaluations for his service-connected right and left anterior compartment syndrome/overuse syndrome. He contends that pain in the backs of his legs when he gets out of bed in the morning and pain in his shins and feet when he walks. He further contends that his leg disabilities have increased in severity since his discharge from service and that his physical activities are limited as a result. His representative requests that all reasonable doubt be resolved in the veteran's favor. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claims for compensable evaluations for left and right anterior compartment syndrome/overuse syndrome. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim. 2. The veteran was scheduled for and notified of, but inexplicably failed to report to, VA examinations in January 1995 in conjunction with his claims of entitlement to increased evaluations for left and right leg disabilities. CONCLUSION OF LAW Because the veteran failed without good cause to report for the VA examinations scheduled in conjunction with his claims for increased disability ratings for his service-connected left and right leg disabilities, these claims must be denied. 38 C.F.R. § 3.655(b) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented claims that are plausible. Cf. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (where veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well grounded claim for an increased rating). In this instance, the veteran is appealing the initial rating of these disabilities, but has asserted that the disability is more severe than reflected in the medical evidence used for the initial rating. All relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). As discussed above and below, the Board has remanded this appeal twice to obtain additional development of the evidence. Development has been unsuccessful due to the veteran's failure to respond to requests for additional information or to report for examinations. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). Because the record did not support the assignment of higher evaluations for the disabilities at issue, the Board first remanded the case in March 1993 to afford the veteran an opportunity to have VA orthopedic, neurological and rheumatologic examinations. The Board specifically stated that the purpose of the examinations was to ascertain the severity of the veteran's service-connected leg disabilities. The record indicates that the RO sent the claims folder to the VA Medical Center in Tampa, Florida, for the examinations. Apparently, that facility canceled the examinations when it learned that the veteran had moved to Pompano Beach, Florida, which is in another jurisdiction. The record indicates that the RO then sent the file to the VA outpatient clinic in Oakland Park, Florida. That facility returned the file to the RO with a notation that the veteran had failed to report for the examinations scheduled in August 1993. As noted in the Board's remand of December 1993, there was a question as to whether the veteran had received notice of the examinations due to his change of address. The case was, therefore, returned to the RO for another attempt at the requested development. Pursuant to a second Board remand in December 1993, notification of a December 1994 examination date was sent to the veteran's Pompano Beach address. The notification letter was returned, and the examinations were, therefore, canceled. The RO ascertained that the veteran had again moved, this time to another location in Pompano Beach. Records made in the regular course of the development of the claim indicate that the examinations were rescheduled in January 1995 and the veteran was properly notified at his latest address. Again, he failed to report for the examinations. The notification was not returned as undelivered on this occasion. The record does not contain any indication that the veteran notified VA or his representative of the reason for his failure to report for the examinations. Significantly, there is no evidence that the veteran failed to receive the notice of the January 1995 examinations. The Board concludes that the veteran was informed of these VA examinations and that he simply failed to report for them. The veteran has claims for increased disability evaluations pending on appeal before VA, but he has not attempted to notify VA of his address changes. The RO obtained his addresses through its own investigation. When entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, a claim for an increased disability evaluation shall be denied. 38 C.F.R. § 3.655(a), (b) (1994). The veteran has inexplicably failed to report for at least one set of VA examinations, the notification of which was clearly sent to his last known address, and which had been scheduled to determine his entitlement to increased ratings for the two disabilities at issue. Consequently, I have no alternative but to deny the veteran's claims of entitlement to increased ratings for his service-connected right and left anterior compartment syndrome/overuse syndrome. ORDER A compensable evaluation for right anterior compartment syndrome/overuse syndrome is denied. A compensable evaluation for left anterior compartment syndrome/overuse syndrome is denied. MARY GALLAGHER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.