Citation Nr: 0704992 Decision Date: 02/21/07 Archive Date: 02/27/07 DOCKET NO. 03-23 487 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Sorisio, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1980 to September 1992, with subsequent service with the Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2001 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). In August 2003, the veteran requested a Travel Board hearing; he did not appear for such hearing scheduled in November 2005. The case was previously before the Board in January 2006 when it was remanded for further development. FINDINGS OF FACT 1. In the Board's January 2006 remand, and in correspondence dated in January 2006 from the Appeals Management Center (AMC) in Washington, DC, further evidence was sought from the appellant in connection with his instant claim of service connection; in the Board's January 2006 remand, the appellant was advised of the consequences of a failure to respond to a request for the evidence sought. 2. The appellant has failed to respond to AMC and Board requests for further evidence essential for a proper determination on the matter at hand. CONCLUSION OF LAW By not responding to the requests of the Board and the AMC for information and evidence necessary to make a decision on the merits of his appeal within one year, the appellant has abandoned his claim. 38 U.S.C.A. §§ 5107, 7105(d)(5) (West 2002 & Supp. 2005); 38 C.F.R. § 3.158 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The veteran was advised of VA's duties to notify and assist in the development of the claim. While he did not receive complete notice prior to the initial rating decision, a January 2006 letter provided certain essential notice prior to the readjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). April 2001 and January 2006 letters explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, the evidence he was responsible for providing, and advised him to submit any evidence or provide any information he had regarding his claim. He has had ample opportunity to respond/ supplement the record and is not prejudiced by any technical notice deficiency (including in timing) that may have occurred earlier in the process. While he was not advised of the criteria for rating a back disability, or those governing effective dates of awards, he is not prejudiced by lack of such notice (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006)), as rating and effective date criteria have no significance unless the claim is allowed, and the decision below does not do so. Regarding the duty to assist, the RO has obtained the veteran's service medical records, postservice VA records, and some private treatment records. The veteran was afforded a VA examination in November 2000. In accordance with the January 2006 remand, the AMC scheduled the veteran for VA examinations in February and April 2006; he failed to report for these examinations. As explained below, further pertinent evidence appears to be outstanding. However, such evidence may not be obtained without the veteran's cooperation. VA's duty to assist is met. B. Factual Background, Legal Criteria, and Analysis In January 2006, the Board found that the record required clarifying information regarding the veteran's back disability and remanded the instant claim to the AMC for further development. In January 2006 correspondence, the AMC requested that the appellant provide additional evidence pertaining to post-service treatment for his back disability. The correspondence further requested that he complete enclosed VA Form 21-4142 for VA to obtain the medical records. This letter was mailed to the appellant's current address of record; it was not returned to the AMC as undeliverable. To date, he has not responded. The Board observes that the January 2006 remand, in addition to citing 38 C.F.R. § 3.158(a), advised the veteran that the requested records were "necessary for the determinations that must be made regarding the instant claim." Where evidence requested in connection with an original claim is not furnished within one year after the date of the request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. 38 C.F.R. § 3.158(a). As noted, the appellant did not respond to requests for information within one year of the January 2006 request, nor did he request an extension of time to provide the information. It is also notable that the veteran failed to report for a November 2005 hearing and February and April 2006 VA examinations. The facts of this case are clear. The appellant has failed to respond to requests for information essential for the proper adjudication of his claim. Attempts to contact him have been made at his known address. He has not provided VA the sought after information (i.e., additional information pertaining to post-service treatment he has received in association with his back disability). He was advised of the consequences of a failure to provide the information, but still ignored the request. The controlling regulation in these circumstances, 38 C.F.R. § 3.158(a), is unambiguous, and mandates that the claim will be dismissed. Under these circumstances, the Board has no recourse but to conclude that the veteran has abandoned the claim. See Hyson v. Brown, 5 Vet. App. 262 (1993). The duty to assist is not a one-way street. A veteran cannot passively wait for assistance in those circumstances where his cooperation is needed for evidentiary development (see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991)), nor can he deliberately choose to ignore requests for critical pertinent information, as appears to be the case here. As the veteran has abandoned the claim at issue, there remains no allegation of error of fact or law for appellate consideration. Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. ORDER The appeal to establish entitlement to service connection for a back disability is dismissed. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs