When 3.655 does not apply

What I found of interest in this review of this CAVC's decision is the Secretary's admission regarding when 3.655 does not apply, see "Counsel for the Secretary conceded at oral argument that § 3.655 could not be used to deny “an appeal of an original decision,” even where a claimant fails to report for scheduled VA examination(s) without good cause.



This is from the Fall 07- Winter 09 CAVC Bar Association Veterans Law Journal

DETERMINING THE SCOPE OF 38 C.F.R. §
3.655 IN FAILURE TO REPORT CASES
By Donnie Hachey
Turk v. Nicholson, No. 06-0069. Oral argument
was held before Judges Kasold, Hagel and Davis on
October 10, 2007. Decided January 31, 2008.
On appeal in Turk is a September 2005 Board
decision that denied an initial rating in excess of 50
percent for post-traumatic stress disorder (PTSD).
The Board relied heavily on 38 C.F.R. § 3.655 in
denying the claim, finding that the appellant failed
without good cause to report for multiple VA
psychiatric examinations. The Board also found the
existing medical evidence of record, which consisted
primarily of reports from the appellant’s private
psychologist, inadequate to properly decide the claim.
At oral argument, the appellant acknowledged that
he lacked good cause for failing to report for the
scheduled VA examinations, but argued that the
Board’s reliance on § 3.655 to deny the claim was
misplaced. The appellant reasoned that while § 3.655
may be used to deny an increased rating claim where a
claimant fails to report for VA examination, it may not
be used to deny “an appeal of an original decision.”
For appeals of original decisions, § 3.655 commands
that the claim be rated based on the evidence of record
regardless of the claimant’s failure to report for VA
examination.
The appellant argued that because his claim
involved the assignment of an initial rating, it was “an
appeal of an original decision.” The appellant
therefore argued that the Board erred by denying the
claim outright, rather than rating it based on the
evidence of record. In this regard, the appellant
contended that the private medical evidence he
submitted supported a higher rating and was adequate
to rate the veteran’s PTSD without resort to a VA
psychiatric examination.
Counsel for the Secretary conceded at oral
argument that § 3.655 could not be used to deny “an
appeal of an original decision,” even where a claimant
fails to report for scheduled VA examination(s)
without good cause. Counsel for the Secretary instead
argued that the case did not involve “an appeal of an
original decision,” and that, as such, outright denial
under § 3.655 was proper. Because the appeal involves
the assignment of an initial rating, the Court
essentially rejected this theory from the bench at oral
argument.
Counsel for the Secretary also contended that the
Board had not relied solely on § 3.655 to deny the
claim, but had decided in the alternative that the
evidence already of record was insufficient to warrant
a higher rating. In support of this argument, the
appellee pointed to language in the Board’s decision
which called into question the sufficiency of the
private medical evidence and suggested that such
evidence by itself did not support a rating in excess of
the 50 percent.
In its January 31, 2008 decision, the Court
affirmed the Board’s decision. The Court found that it
was “clear error” for the Board to classify the veteran’s
claim as an increased rating claim and summarily deny
the claim under the second sentence of 38 C.F.R. §
3.655(b), and should have instead treated the claim as
an original claim. However, the Court found that the
Board’s legal error was nonprejudicial, since the Board

made findings and determinations explaining why the
medical evidence of record did not support a higher
disability rating, therefore satisfying the “evidence of
record” standard of the first prong of section 3.655(b).
Counsel for Appellant: Antonio E. Bendezu, Esq.
(307) 258-3149
Counsel for Appellee: David J. Lowenstein, Esq.
(202) 639-4800