12-16 387
12-16 387
| Board of Vet. App. | Nov 30, 2017Background
- Veteran served on active duty from July 1973 to July 1976 and appealed denial of service connection for disabilities of both eyes.
- Initial VA/Board denial in June 1991; claim was reopened by the Board in January 2015 based on new and material evidence and remanded for an updated eye examination and records.
- Multiple attempts were made in 2016–2017 to schedule a VA eye examination and to confirm the Veteran’s current address; an August 2017 exam was scheduled but the Veteran failed to report and did not provide a reason or reschedule.
- VA notified the Veteran in an August 2017 SSOC that, under 38 C.F.R. § 3.655, failure to report for a required exam after reopening would result in denial; the SSOC was not returned as undeliverable.
- Record contains evidence of a refractive error (myopia) and prior VA findings that the Veteran could not wear corrective lenses; no acquired eye pathology has been shown to be related to service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service connection for both eyes should be granted | Veteran: vision loss caused by in-service chemical splash; vision worsened since service | VA: claim lacks current nexus and required exam was not completed; prior reopening followed by no-show permits denial under regulation | Denied — claim denied because Veteran failed to report for required exam after reopening and record lacks nexus |
| Whether VA satisfied duty to assist | Veteran: needed VA exam and record development to prove nexus | VA: made repeated attempts to obtain records, schedule exam, and notify Veteran; SSOC delivered | VA satisfied duty to assist; further development not possible absent Veteran cooperation |
| Effect of failure to attend exam on adjudication | Veteran: (asserts ongoing disability; argued prior compensation) | VA: regulation 38 C.F.R. §3.655(b) mandates denial where claimant fails to report for exam after reopening without good cause | Held for VA — regulation requires denial when claimant fails to report without good cause after reopening |
| Whether benefit-of-the-doubt applies | Veteran: lay testimony supports service causation | VA: preponderance of contrary evidence and no nexus | Benefit-of-the-doubt not applied; preponderance against claim |
Key Cases Cited
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (elements required for service connection)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competency of lay evidence)
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (when lay evidence can establish medical diagnosis)
- Engelke v. Gober, 10 Vet. App. 396 (1997) (application of 38 C.F.R. § 3.655 and consequences of failure to report for exam)
- Wamhoff v. Brown, 8 Vet. App. 517 (1996) (duty to assist not one-way; claimant obligations)
- Wood v. Derwinski, 1 Vet. App. 190 (1991) (claimant’s duty to cooperate with development)