38 C.F.R. § 3.655

Failure to report for Department of Veterans Affairs examination

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(a) General. 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 supplemental 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 supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.

(c) Running award. (1) When a claimant fails to report for a reexamination and the issue is continuing entitlement, VA shall issue a pretermination notice advising the payee that payment for the disability or disabilities for which the reexamination was scheduled will be discontinued or, if a minimum evaluation is established in part 4 of this title or there is an evaluation protected under § 3.951(b) of this part, reduced to the lower evaluation. Such notice shall also include the prospective date of discontinuance or reduction, the reason therefor and a statement of the claimant's procedural and appellate rights. The claimant shall be allowed 60 days to indicate his or her willingness to report for a reexamination or to present evidence that payment for the disability or disabilities for which the reexamination was scheduled should not be discontinued or reduced.

(2) If there is no response within 60 days, or if the evidence submitted does not establish continued entitlement, payment for such disability or disabilities shall be discontinued or reduced as of the date indicated in the pretermination notice or the date of last payment, whichever is later.

(3) If notice is received that the claimant is willing to report for a reexamination before payment has been discontinued or reduced, action to adjust payment shall be deferred. The reexamination shall be rescheduled and the claimant notified that failure to report for the rescheduled examination shall be cause for immediate discontinuance or reduction of payment. When a claimant fails to report for such rescheduled examination, payment shall be reduced or discontinued as of the date of last payment and shall not be further adjusted until a VA examination has been conducted and the report reviewed.

(4) If within 30 days of a pretermination notice issued under paragraph (c)(1) of this section the claimant requests a hearing, action to adjust payment shall be deferred as set forth in § 3.105(i)(1) of this part. If a hearing is requested more than 30 days after such pretermination notice but before the proposed date of discontinuance or reduction, a hearing shall be scheduled, but payment shall nevertheless be discontinued or reduced as of the date proposed in the pretermination notice or date of last payment, whichever is later, unless information is presented which warrants a different determination. When the claimant has also expressed willingness to report for an examination, however, the provisions of paragraph (c)(3) of this section shall apply.

(Authority: 38 U.S.C. 501) Cross References:

Procedural due process and appellate rights: See § 3.103. Examinations: See § 3.326. Reexaminations: See § 3.327. Resumption of rating when veteran subsequently reports for VA examination: See § 3.330.

[55 FR 49521, Nov. 29, 1990; 58 FR 46865, Sept. 3, 1993; 80 FR 18117, Apr. 3, 2015; 84 FR 171, Jan. 18, 2019]

Notes of Decisions

Cited in 219 cases (11 in the last 5 years), 1987–2026 · leading case: Norbert J. Turk v. James B. Peake, 21 Vet. App. 565 (Vet. App. 2008).

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Norbert J. Turk v. James B. Peake, 21 Vet. App. 565 (Vet. App. 2008). · cites it 11× “On appeal, the Court considers whether the Board appropriately applied 38 C.F.R. § 3.655 (b) (2007) in denying the veteran entitlement to a higher disability rating for PTSD when the veteran failed to report for VA examinations without good cause.”

Kyhn v. Shinseki, 24 Vet. App. 228 (Vet. App. 2011). · cites it 8× “The Board noted that, in accordance with 38 C.F.R. § 3.655 , “[w]hen, as here, entitlement to a VA 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 scheduled in…”

Clarence W. Kowalski v. R. James Nicholson, 19 Vet. App. 171 (Vet. App. 2005). · cites it 3× “158 (a) might refer to both documentary evidence and VA medical examinations), we conclude that such a refusal is addressed more specifically by 38 C.F.R. § 3.655 (b) (2001). That regulation specifically provides that “[w]hen a claimant fails[, without good cause,] to report for…”

Arnold C. Kyhn v. Eric K. Shinseki, 23 Vet. App. 335 (Vet. App. 2010). · cites it 8× “§ 5103A duty to assist because a VA audiology examination was scheduled and “notification of the examination was mailed to the veteran at his correct address of record.”

Arnold Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). · cites it 2× “May 17, 2007) (citing 38 C.F.R. § 3.655 ). KYHN v. SHINSEKI 4 practice for mailing such notice to veterans.”

Frank E. Coburn v. R. James Nicholson, 19 Vet. App. 427 (Vet. App. 2006). · cites it 2× “In my view, the appellant's position before the Court is analogous to an invocation of 38 C.F.R. § 3.655 (b) (2005) at the VA level.”

Wamhoff v. Brown, 8 Vet. App. 517 (Vet. App. 1996). · cites it 3× “See 38 C.F.R. § 3.655 (1982); compare 38 C.F.”

Engelke v. Gober, 10 Vet. App. 396 (Vet. App. 1997). · cites it 2× “In its June 10, 1993, decision, the Board found that the appellant had failed to appear for scheduled examinations “without good cause” and, applying the provisions of 38 C.F.R. § 3.655 (1996), denied the claim for an increased rating.”

Hyson v. Brown, 5 Vet. App. 262 (Vet. App. 1993). “158 (b) (1992)), or “good cause” (see 38 C.F.R. § 3.655 (1992)) for failing to report for the scheduled examination.”

Olson v. Principi, 3 Vet. App. 480 (Vet. App. 1992). “38 C.F.R. § 3.655 (b) (1991). Section 3.655(a) provides an exception in instances when a veteran fails to report for good cause.”

Jones v. West, 12 Vet. App. 98 (Vet. App. 1998). “Finally, we note that the Board appears to have correctly determined that 38 C.F.R. § 3.655 (c) (1998) (entitled “Running award”) does not apply to this case because the veteran’s claim has appar *104 ently been abandoned, discontinued, or suspended under all potentially…”

Arnold C. Kyhn v. Eric K. Shinseki, 26 Vet. App. 371 (Vet. App. 2013). “” 38 C.F.R. § 3.655 (2006). In considering the evidence of record, the Board assigned “limited probative value” to the January 2004 private medical evidence regarding Mr.”

Show all 219 citing cases →

— 38 C.F.R. § 3.655(b) — 4 cases

13-32 323 (Board of Vet. App. 2015).

Gainer v. McDonough (Fed. Cir. 2022).

Lapointe v. Nicholson, 222 F. App'x 962 (Fed. Cir. 2007).

08-36 907 (Board of Vet. App. 2016).

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