Citation Nr: 0005896 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 97 - 03 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES Entitlement to service connection for residuals of a head injury, to include headaches and tinnitus. Entitlement to service connection for residuals of injuries to the right 2nd, 3rd, and 4th ribs. Entitlement to service connection for residuals of back injury, including arthritis. Entitlement to a compensable evaluation for residuals of a left wrist fracture. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty from August 1942 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of October 1996 from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This case was previously before the Board in March 1997 and in October 1998, and was remanded to the RO on both occasions for additional development of the evidence. The requested development was not completed in accordance with the instructions contained in the remand order because the veteran failed on both occasions to provide information requested by the Board and the RO which was necessary to adequately assist him in the development of his claims, and further failed to report for scheduled VA examinations. The case is now before the Board for further appellate consideration on the issues on appeal. In addition, a rating decision of November 1999 denied service connection for chronic obstructive pulmonary disease, claimed as asthma. As of the date of this decision, no Notice of Disagreement has been received from the veteran and that issue is not in proper appellate status. FINDING OF FACT Without good cause shown, the veteran failed to report for scheduled VA examinations and reexaminations necessary to establish entitlement in connection with non-original claims for service connection for headaches and tinnitus as secondary to a head injury; for residuals of injury to the right 2nd, 3rd, and 4th ribs; and for residuals of a back injury, including arthritis, and for examination in connection with a claim for an increased (compensable) rating for a left wrist disability, as contemplated by 38 U.S.C.A. § 501 (West 1991) and 38 C.F.R. § 3.655(a) and (b). CONCLUSION OF LAW The claims for service connection for headaches and tinnitus as secondary to a head injury; for residuals of injury to the right 2nd, 3rd, and 4th ribs; and for residuals of a back injury, including arthritis, and the claim for an increased rating for a left wrist disability are denied due to the veteran's failure to report for scheduled VA examinations and reexaminations without good cause shown under the provisions of 38 U.S.C.A. § 501 (West 1991) and 38 C.F.R. § 3.655(a) and (b). 38 U.S.C.A. § 501 (West 1991) and 38 C.F.R. § 3.655(a) and (b) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The record shows that in February 1971, the veteran filed his original claim for VA disability compensation benefits for injuries sustained in a 1945 guard house collapse, including a head injury, a left wrist fracture, vision disturbances, and headaches. He subsequently failed to provide requested evidence showing current disability and continuity of treatment for the claimed disabilities, and his claim was considered abandoned after one year pursuant to 38 U.S.C.A. § 501 and 38 C.F.R. § 3.158(a). In March 1996, the veteran filed a non-original claim for VA disability compensation and pension benefits (VA Form 21-526) based on asthma, a head injury, and a left wrist fracture. He reported treatment for asthma in 1986 by a Dr. Lyons, but the address he provided was insufficient, and an RO letter to that address was returned. No postservice treatment was reported for his left wrist fracture or for a head injury. In subsequent correspondence, the veteran claimed service connection for back conditions, for residuals of fractured ribs, and for tinnitus secondary to the 1945 guard house collapse. In May 1996, the veteran underwent special VA examinations for each of his claimed disabilities. A report of VA general medical examination found that he was cooperative, emotionally intact, his affect and mood were appropriate and euthymic, and he was capable of managing his benefits. A report of VA neurologic examination found that he was alert, oriented, and capable of managing his affairs. A rating decision of October 1996 granted a permanent and total disability rating for pension purposes due to back and respiratory disability, and granted service connection for a left wrist fracture, while denying service connection for residuals of a head injury; for residuals of injury to the right 2nd, 3rd, and 4th ribs; for tinnitus; and for a back condition. The veteran was notified of those determinations, and filed a Notice of Disagreement. In that Notice of Disagreement, his attorney alleged that the May 1996 VA examinations were inadequate, and demanded that additional VA examinations be scheduled. That request was declined by the RO. A Statement of the Case was issued which informed the veteran, in pertinent part, that 38 C.F.R. § 3.326 required that individuals for whom a VA examination has been scheduled are required to report for examination. The case was subsequently transferred to the Board. Pursuant to Remand by this Board in March 1997, additional VA examinations of the veteran pertaining to the disabilities on appeal were scheduled in October 1997, and notices of the appointments were sent to the veteran and to his attorney. The veteran failed to report for the scheduled examinations, and provided no explanation for that failure to report. In addition, the veteran was asked by RO letter of May 1997 to assist the RO in obtaining additional evidence needed to make a decision on his appeal, to include signing and returning medical record release authorizations for all private and VA health care providers who had treated him for any of the disabilities on appeal. In particular, he was asked to provide a medical record release authorization for a Dr. Lyons in Kearney, Nebraska. No response was received from the veteran or his attorney. The VA Medical Center, Grand Island, had no record of a Dr. Lyons on its staff. The case was returned to the Board for further appellate review. In May 1998, the RO was notified that the veteran had been admitted to a nursing home because of malnutrition and respiratory failure. The record shows that the veteran is currently in receipt of VA pension benefits on a direct-pay basis, and no fiduciary has been requested or appointed for the veteran. In October 1998, the Board again remanded the case to the RO for additional development of the evidence, to include obtaining the names and addresses of all health care providers who had treated the veteran for the disabilities on appeal, and to schedule additional VA examinations of the veteran with respect to those disabilities. In that Remand order, the Board cited applicable law and regulations pertaining to the consequences of failure to report for scheduled VA examinations without good cause. However, the veteran and his attorney failed to respond to a December 1998 RO letter asking that he assist the RO in obtaining additional evidence needed to make a decision on his appeal, to include identifying the names, addresses and dates of treatment for all private and VA health care providers who had treated him for any of the disabilities on appeal. The veteran was also asked to provide a medical record release authorization for a Dr. Lyons in Kearney, Nebraska. No response was received from the veteran or his attorney. However, in February 1999, an Eligibility Verification Report and Medical Expense Report, signed by the veteran, were forwarded to the RO by his attorney. In a May 1999 letter sent direct to the veteran's attorney, with copies to the veteran's daughter and to the nursing facility, the RO explained that additional evidence was needed to make a decision on the veteran's appeal; that part of that evidence was to be obtained from the veteran; and that if the veteran was now willing and able to respond and to report for a scheduled VA examination, one would be scheduled. No response was received from the veteran or from his attorney. There is no medical evidence in the record showing that the veteran was incapable of reporting for examination, and no contentions to that effect have been advanced by either the veteran or his attorney. By Supplemental Statement of the Case, issued in November 1999, the veteran and his attorney were advised of the consequences of failure to report for scheduled VA examinations without good cause as provided under the provisions of 38 C.F.R. § 3.655 (1999). II. Analysis In the Statement of the Case, issued in December 1996, the veteran was informed that 38 C.F.R. § 3.326 provided that: (a) Where there is a well-grounded claim for disability compensation or pension but medical evidence accompanying the claim is not adequate for rating purposes, a Department of Veterans Affairs examination will be authorized. This paragraph applies to original and reopened claims as well as claims for increase submitted by a veteran, surviving spouse, parent, or child. Individuals for whom an examination has been scheduled are required to report for the examination. Title 38 U.S.C.A. § 501 (West 1991); and 38 C.F.R. § 3.655 (1999) provide that when entitlement or continued 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, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA. (b) Original or reopened claim, or claim for increase. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. The Board notes that the veteran's original claim for VA disability compensation benefits for injuries sustained in a 1945 guard house collapse was received at the RO in February 1971, and was considered abandoned after one year due to the veteran's failure to provide evidence requested by the RO. In this case, the veteran failed to report for scheduled VA examinations in October 1997, as required by Remand of this Board in March 1997, although both the veteran and his attorney were notified of the dates of the scheduled examinations. In addition, the veteran has failed to provide any explanation or show good cause for his failure to report, or to express his willingness to report. Further, the reports of VA neurological and general medical examinations, conducted in May 1996, disclosed that the veteran was alert, cooperative, oriented, emotionally intact, his affect and mood were appropriate and euthymic, and he was capable of managing his benefits. There was no suggestion that the veteran was incompetent, or that he was not capable of managing his affairs, to include responding to letters from the RO. Neither the veteran, his attorney, nor anyone acting on behalf of the veteran has suggested that he is incompetent, that he is incapable of responding to correspondence, or that his attorney is incapable of responding to correspondence such as the May 1999 RO letter to that attorney. To that point, the Board notes that in February 1999, the veteran's attorney submitted an Eligibility Verification Report and Medical Expense Report, signed by the veteran, showing the veteran's 1998 income and medical expenses. Those facts tend to establish that the veteran has contact with his attorney, and is capable of responding by providing signed reports showing his income and medical expenses when he chooses. The Board notes that the conditions which resulted in his being placed in a nursing home in May 1998 were malnutrition and a respiratory disorder, and were not shown to be related to any issue of psychiatric disability or competence. The Board further notes that the failure of the veteran to report for scheduled VA examinations resulted in the RO and the Board not having information necessary to evaluate the disabilities at issue, and that the veteran was informed in writing of the necessity for the additional examinations scheduled and the consequences of his failure to report for such examinations. By failing to respond in any manner whatsoever, the veteran and his attorney deprived the RO of the opportunity to have the veteran examined at the nursing home if he felt that he was not able to report for scheduled VA examinations. However, the Board finds that the veteran has failed to report for scheduled VA examinations; that he has failed to provide good cause for his failure to so report, or any explanation at all; and that his attorney has failed to respond to or acknowledge an RO request that the veteran inform the RO of his willingness ande ability to report for VA examination. Based upon the foregoing, the Board finds and concludes that the veteran failed to report for scheduled VA examinations without just cause or excuse; that there is no evidence that his disabilities prevented him from reporting for such examinations or from expressing his willingness to report, either directly to the RO or through his attorney; and that there is no running award of disability compensation benefits which is based upon a service-connected disability and with respect to which a predetermination notice is required. Accordingly, the veteran's claims are denied pursuant to 38 U.S.C.A. § 501 (West 1991) and 38 C.F.R. § 3.655 (1999). In view of the Board's decision in this natter, it does not reach the issue of whether the veteran's actions and ommissions to act, as described herein, constitute an abandonment of his claims under the provisions of 38 C.F.R. § 3.158(a) (1999). ORDER The veteran's claims of entitlement to service connection for residuals of a concussion, to include headaches and tinnitus; for residuals of injuries to the right 2nd, 3rd, and 4th ribs; and for residuals of back injury, including arthritis, are denied. The veteran's claim of entitlement to a compensable evaluation for residuals of a left wrist fracture is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals