BVA9505044 DOCKET NO. 93-03 683 ) DATE ) ) On appeal from a decision by the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an increased (compensable) rating for conjunctivitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Keith W. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from November 1975 to December 1990. This matter comes to the Board of Veterans' Appeals (Board) from an October 1991 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which granted service connection for conjunctivitis and assigned a noncompensable rating. The veteran appealed the rating assigned. The Board remanded the case in August 1994 for additional development, and the case was returned to the Board in January 1995. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends the noncompensable rating assigned for conjunctivitis does not adequately reflect the severity of his disability. He says it is a recurring condition, with symptoms that vary from day to day in severity. He points out that he had eye surgery during service, at which time the ducts in his left eye were lacerated to allow the secretions to drain, and that this left permanent scars on his eye tissue. 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 claim for an increased rating for conjunctivitis. FINDINGS OF FACT 1. The veteran is service-connected, and rated noncompensable, for conjunctivitis; his condition is shown to be asymptomatic. 2. The veteran, without showing good cause for his absence or attempting to reschedule, failed to report for a September 1994 VA eye examination to assess the current severity of his service- connected conjunctivitis. CONCLUSION OF LAW Because the veteran failed to report for a scheduled VA eye examination without showing good cause or attempting to reschedule, his claim for an increased rating for conjunctivitis is denied. 38 C.F.R. §§ 3.326, 3.327, 3.655 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Records on file show that the veteran was treated for recurring bouts of conjunctivitis of unknown etiology during service (starting in June 1988). Reportedly, treatment generally consisted of using eye drops. At his December 1990 separation examination, it was noted that he had defective visual acuity in both eyes, but that this was correctable with the use of prescription glasses, which he wore. His conjunctivitis was described as an asymptomatic condition. In January 1991, the veteran filed an application for VA compensation benefits related to an asthmatic condition reportedly developed during service. He later underwent a general medical examination by VA in connection with this claim, in March 1991. That examination predominantly concerned his asthmatic condition; however, it revealed that his pupils were equal and reactive, and his ocular movements were full. The examiner noted that the claims folder was not available for review at the time of that examination. The veteran amended his claim for VA compensation benefits in April 1991 to include a claim for service connection for an eye condition (conjunctivitis) and other conditions which are not relevant to the subject matter of this appeal. In subsequent statements, such as his January 1992 notice of disagreement, he complained that his eyes had not been examined by VA (service connection for conjunctivitis had earlier been granted by the RO in October 1991, and a noncompensable rating had been assigned; this rating has remained in effect since that time). In other statements submitted, he claimed that his eye condition has worsened since he was last examined in service. He said his conjunctivitis was a recurring problem, with symptoms varying in severity from time to time. During testimony at a February 1993 hearing, the veteran's representative argued that the symptoms related to the veteran's conjunctivitis occur at varying intervals and that this is why the disorder was not evident during what he insisted was a very cursory examination given by VA in March 1991. Although the veteran acknowledged that he had not been treated since service, he said that his conjunctivitis flared up anywhere from one to three times per month and that he had experienced recurring symptoms (e.g., drainage, mucous formation, puffing, etc.) every week for three or four weeks immediately preceding the hearing. He indicated that he was scheduled to be examined by an ophthalmologist, Doctor Box, in the near future. The representative requested that another VA examination (of the eyes) be scheduled to assess the current severity of the veteran's conjunctivitis, and the veteran said he would submit records from his pending examination by Dr. Box as soon as they became available. In other testimony elicited at the hearing, the veteran claimed that his service-connected conjunctivitis caused problems at his job, such as when working with computers, talking on the telephone, and writing. He said he was not presently taking any medications, although he noted that he had, at times in the past, used over-the-counter eyewash. The Board remanded the case in August 1994 for additional development, to include an examination of the veteran's eyes and affording him an opportunity to submit additional treatment records, such as those concerning his recent treatment by Dr. Box. The RO sent the veteran a letter in August 1994, requesting that he identify additional sources of treatment, including that from Dr. Box, so that the records could be obtained and reviewed. He did not respond to this request. The veteran did not report for his scheduled September 1994 VA eye examination, did not show good cause for his absence, and did not attempt to reschedule the examination. While VA has a statutory duty to assist the veteran in developing evidence pertinent to a well-grounded claim, the veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet.App. 190 (1991). It is incumbent upon a veteran to submit to VA examinations when applying for a VA benefit, especially in instances, such as in this case, where the examination is essential to assessing the current severity of his service-connected disability ( by the veteran's own admission, his eyes had not been fully examined since service, and the symptoms associated with the conjunctivitis varied from day to day, thereby highlighting the need for a more current examination). The governing legal authority, 38 C.F.R. Part 4, Diagnostic Code 6017, requires that an objective determination be made to determine whether there is evidence of active eye pathology and to determine to what degree, if any, this affects the veteran's visual acuity. Where a veteran fails to report for a scheduled examination, and does not provide VA with a justifiable excuse for his absence or make an attempt to reschedule, the benefit shall be denied because there remains no adequate means of effectively rating the service-connected disability. See 38 C.F.R. §§ 3.326, 3.327, 3.655; Dusek v. Derwinski, 2 Vet.App. 519 (1992). In this case, the veteran did not report as scheduled for his September 1994 eye examination that was to be conducted by VA. He did not attempt to reschedule the examination, nor did he show good cause for his failure to report. Furthermore, he did not respond to VA's request for additional evidence, in the form of private treatment records concerning a recent examination of his eyes by Dr. Box. Despite the veteran's testimony that his eye condition has worsened, the available medical evidence does not bear this out in that it shows that his condition is asymptomatic. Active manifestations of the condition have not been shown. The evidence is not in relative equipoise. The benefit-of-the-doubt rule does not apply. For the foregoing reasons, his claim for an increased rating for conjunctivitis must be denied. ORDER An increased rating for conjunctivitis is denied. M. CHEEK 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.