The regulations regarding the processing of a claim provide for two possible outcomes if the Veteran misses a VA examination, without good cause.
1) When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and the exam was scheduled in conjunction with an original compensation claim, the claim will be rated based on the evidence of record.
2) When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination,, and the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.
One point – the VA must provide the Veteran with notice of the regulation that failure to appear may result in the denial of the Veteran’s claim for disability benefits, or adjudication of the Veteran’s claim for disability benefits being decided on the record without the exam. This notice often appears in the C&P exam notice letter that the Veteran receives, although sometimes, it does not.
The best course of action, if you know in advance that you cannot make a C&P exam, is to:
1) Contact the phone number on the exam notice, write down the name of the person you talked to, and follow up with a letter to that individual summarizing your discussion with that individual.
2) Send this letter via Certified Mail Return Receipt – the VA often claims it did not receive correspondence it clearly should have received.
One of our clients requested that one of his four exams be rescheduled; the VA rescheduled all of the exams except the one that he asked to be rescheduled. Fortunately, we had a letter summarizing what he talked about with the VA Medical Center with the green card receipt from the Post Office.
If you miss a C&P exam due to an emergency, then you will have to convince the VA Regional Office, and probably the BVA, that you had “good cause” for missing the exam.
What is good cause for missing an appointment? Good cause is a legal term of art; different courts define it very differently, but generally, “good cause involves an exercise of due diligence and ordinary prudence that a reasonable person would exercise under the circumstances.
xamples of good cause for not reporting include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R § 3.655(a). You should have documentation to support a failure to appear for a C&P exam. Also, the above situations aren’t going to rise to the level of good cause if you don’t promptly notify the VA of the reasons for missing the appointment.
For example, if you have a car accident on the way to the VA C&P exam, if you wait six (6) months to tell the VA that, it is likely not going to be “good cause” unless you were hospitalized during that time, and otherwise able to contact (or direct someone else to contact) the VA on your behalf.