PROSTATE GLAND DISEASE OF

Summary

The veteran, who served in the U.S. Army from November 1985 to November 1993, appeals the denial of increased disability ratings for residuals from a scrotal abscess and for right knee disability. The Board of Veterans' Appeals (Board) denied these claims because the veteran failed to attend scheduled VA examinations without good cause. The veteran acknowledged receiving notice of the January 2, 2025, examinations but stated he failed to attend because they were a waste of time and money, given his past experiences with VA examinations. The Board found no good cause for this failure, citing 38 C.F.R. § 3.655(b), which mandates denial when a claimant fails to report for an examination without good cause. The veteran's lay statement and testimony detailed his symptoms, including urinary incontinence, pain, and reduced mobility in his right knee due to degenerative arthritis, but these did not establish good cause for missing the examinations. The Board concluded that the claims for increased ratings must be denied as a matter of law due to the failure to appear for the scheduled examinations.

Rationale

Failure to attend VA examination; No good cause shown for failure to attend; Claim denied as a matter of law per 38 C.F.R. § 3.655(b)

Full Decision Text

Citation Nr: A26040844
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 250201-514068
DATE: April 30, 2026

ORDER

Entitlement to an increased rating in excess of 40 percent disabling for residuals, status post scrotal abscess, is denied.

Entitlement to an increased rating in excess of 10 percent disabling for right knee recurrent sprain with chronic arthralgia, limitation of flexion, is denied. 

FINDINGS OF FACT

1. A new VA medical examination was necessary to determine the Veteran's entitlement to an increased rating for residuals, status post scrotal abscess, and the Veteran failed to attend a VA examination without good cause.

2. A new VA medical examination was necessary to determine the Veteran's entitlement to an increased rating for right knee recurrent sprain with chronic arthralgia, and the Veteran failed to attend a VA examination without good cause.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating in excess of 40 percent for residuals, status post scrotal abscess, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.7, 4.71a.

2. The criteria for entitlement to a disability rating in excess of 10 percent for right knee recurrent sprain with chronic arthralgia, limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.7, 4.71a.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army from November 1985 to November 1993.

This matter comes to the Board of Veterans' Appeals (Board) from a January 2025 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 

In the February 1, 2025, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held by the undersigned Veterans Law Judge on December 11, 2025.

Therefore, the Board may only consider the evidence of record at the time of the January 2025 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

The Board notes that, in the Veteran's February 1, 2025, VA Form 10182, the Veteran also appealed the 10 percent disability rating for scar, status-post scrotal abscess. Here, the Veteran was granted entitlement to a 10 percent disability rating for a scar, stat-post scrotal abscess in a December 12, 2024 Board decision, which was subsequently implemented by the AOJ. An appellant cannot challenge the merits of a Board decision by expressing disagreement with the RO's implementation of that decision. See 38 U.S.C.  § 7104(a); Harris v. Nicholson, 19 Vet. App. 345 (2005). Therefore, the 10 percent rating for scar, status-post scrotal abscess, is not on appeal. 

1. Entitlement to an increased rating in excess of 40 percent disabling for residuals, status post scrotal abscess, is denied.

2. Entitlement to an increased rating in excess of 10 percent disabling for right knee recurrent sprain with chronic arthralgia, limitation of flexion, is denied.

The Veteran states that he is entitled to increased disability ratings for a scrotal
 Board decision by expressing disagreement with the RO's implementation of that decision. See 38 U.S.C.  § 7104(a); Harris v. Nicholson, 19 Vet. App. 345 (2005). Therefore, the 10 percent rating for scar, status-post scrotal abscess, is not on appeal. 

1. Entitlement to an increased rating in excess of 40 percent disabling for residuals, status post scrotal abscess, is denied.

2. Entitlement to an increased rating in excess of 10 percent disabling for right knee recurrent sprain with chronic arthralgia, limitation of flexion, is denied.

The Veteran states that he is entitled to increased disability ratings for a scrotal abscess and right knee disability. After a careful review of the record, the Board determines that these matters must be denied. The reasons follow. 

By way of background, in a December 2024 Board decision, the Board remanded the matters of scrotal abscess and right knee disability for VA examinations to determine the current level of severity of those disabilities. On January 2, 2025, the RO associated two Exam Scheduling Request Contention Cancellation documents with the file, stating that the Veteran failed to appear for January 2, 2025, VA examinations for a scrotal abscess disability and a right knee disability. 

On January 14, 2025, the Veteran submitted a lay statement in support of his claims. He stated that he did not attend his VA examinations because they were too far away and he cannot drive long distances because of a knee and ankle disability, as well as his need to urinate often. Regarding his scrotal abscess, he stated that he utilizes urinary incontinence absorbent materials. He stated that he uses more than four during the day and two during the night for urine leakage. He stated that he takes the medication, Terazosin, for his prostate and constant urination disability. He stated that, at times his urine voiding is obstructed and does not fully empty out his bladder. He reported slow and inconsistent voiding during the day and at night, which causes him to have to go back to the restroom just after urinating. Due to his slow urine voiding, the Veteran states that he uses the restroom between four to five times during the night and every thirty minutes during the day. He stated that he has left testicular pain after intercourse and frequent soreness and infections from recurring epididymitis. 

The Veteran stated that his right knee disability has worsened. He stated that the degenerative arthritis in his right knee has begun to affect his right hip, with sharp and shooting pains from his right ankle to his right hip. He stated that he takes two Ibuprofen tablets every two to four hours throughout the day to ease the pain. The Veteran also reports using heat and ice packs on his knee. He stated that his right knee flexibility and motion have been reduced to where his knee pain will occur once his knee is fully extended or flexed to a certain degree. The Veteran reported that his right knee cannot fully extend without significant pain or the Veteran forcing the leg to extend beyond its capability. He stated that he has constant bursitis in his right knee which is relieved with ice and warm knee compressions. The Veteran stated that he has musculoskeletal pain when he walks further than one-fourth of a mile. He stated that he is unable to drive more than two miles without having to rest his leg, or switch to drive with his left leg. He stated that he has right knee effusion along with knee pain while sleeping and walking. The Veteran stated that he uses a cane and a knee brace that helps with his instability. At times, he sleeps with his knee brace to ensure stability. 

In a December 2025 Board hearing, the Veteran testified regarding his scrotal abscess that it is not bothering him right now, but that he had had epididymitis once or twice. He states that sometimes he needs medication. He stated that there is also pain and swelling and that sometimes after urination there is a hydrocele, which is sometimes painful. He testified that he experiences urine leakage after using the restroom. He stated that when using the restroom, he will have a slow stream of urine and then must go back to the restroom in ten minutes. He testified that he does take medication, which sometimes helps, and he avoids drinking a lot of water. He stated that he constantly urinates throughout the night, getting up three or four times during the night. He stated that he wears adult diapers, four to five times during the day, and sometimes at night. He stated that he does self-examinations on his testicles and it is painful to the touch. He stated that he has difficulty maintaining an erection for a long period of time because of recurring urinary tract infections
 is sometimes painful. He testified that he experiences urine leakage after using the restroom. He stated that when using the restroom, he will have a slow stream of urine and then must go back to the restroom in ten minutes. He testified that he does take medication, which sometimes helps, and he avoids drinking a lot of water. He stated that he constantly urinates throughout the night, getting up three or four times during the night. He stated that he wears adult diapers, four to five times during the day, and sometimes at night. He stated that he does self-examinations on his testicles and it is painful to the touch. He stated that he has difficulty maintaining an erection for a long period of time because of recurring urinary tract infections. He stated that it is difficult for him to see a doctor and he avoids doing so to avoid mental harm.

Regarding his right knee, the Veteran testified that, recently, he has had a lot of pain. He stated that he has a habit of trying to walk 10 minutes a day for his cardiovascular health, but lately it has been a struggle for him. He stated that his right knee will hurt when he is lying in bed. He stated that his ankle is also sometimes a problem, so his knee can buckle a bit. He testified that he has also been having hip pain, and that his osteoarthritis seems to have migrated towards his hip. He stated that sometimes when his knee is in pain, his hip is also in pain. He stated that he uses a cane, brace, Aspercreme, Tylenol, and Ibuprofen for his condition. He testified that he cannot drive for more than thirty minutes or his knee will lock up. He stated that he can get in ten to fifteen minutes of exercise before he has pain. He stated that his knee has been bothering him a lot more recently and has aggravated his hip. 

On January 2, 2025, the RO associated two notices with the Veteran's file stating that he failed to appear for his VA examinations for a scrotal abscess and a right knee disability, both scheduled for that same day. In a lay statement filed later that month, the Veteran acknowledged receipt of the notices of the VA examinations but stated that he failed to attend because his serviced-connected disabilities prevented him from doing so. However, in the Veteran's December 2025 Board hearing, the Veteran stated that he failed to attend the two scheduled January 2025 VA examinations because they were a waste of time. The Board finds that the Veteran has not shown good cause as to why he failed to attend his VA examinations and does not now argue that there was good cause for his failure to attend the VA examinations. 

More specifically, during the December 2025 Board hearing, the Veteran testified that he received January 2025 notices of scheduled VA examinations for both his scrotal abscess and his right knee disability. He stated that he has gone to several VA examinations over the past ten years. He testified that the VA examiners do not do a full examination. He stated that the VA examinations are a waste of time and money because he has not been granted benefits. He testified that, due to his past experiences, he did not want to attend the January 2025 VA examinations.  

Notably, 38 C.F.R. § 3.655(b) provides that, when a claimant, without good cause, fails to report for an examination scheduled in conjunction with a claim for increased rating, the claim shall be denied. 38 C.F.R. § 3.655(b). The use of the term "shall" allows VA no choice in how to apply the applicable statute or regulation, as it indicates a mandatory action preclusive of VA's discretion. Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (citing Lopez v. Davis, 531 U.S. 231, 241, 121 S. Ct. 714, 148 L. Ed. 2d 635 (2001)). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or death of an immediate family member. 38 C.F.R. § 3.655(a). 

Here, the Veteran testified that he did receive notice of the January 2025 VA examinations, and it is presumed that appropriate notice was sent. See Kyhn v. Shinseki, 23 Vet. App. 335 (2010). The Board emphasizes that the duty to assist is a two-way-street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the duty to assist is a two-way street that requires a claimant's active participation in a claim for VA benefits). As the Veteran failed to appear for his VA examinations to
 the claimant or death of an immediate family member. 38 C.F.R. § 3.655(a). 

Here, the Veteran testified that he did receive notice of the January 2025 VA examinations, and it is presumed that appropriate notice was sent. See Kyhn v. Shinseki, 23 Vet. App. 335 (2010). The Board emphasizes that the duty to assist is a two-way-street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the duty to assist is a two-way street that requires a claimant's active participation in a claim for VA benefits). As the Veteran failed to appear for his VA examinations to document the severity of his symptomatology, and he did not provide good cause for the failure to appear, the claims must be denied as a matter of law pursuant to 38 C.F.R. § 3.655(b).  

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?

Based on the above, the benefit of the doubt doctrine, see 38 U.S.C. §5107(b), is not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Thus, the claims for increased ratings are denied.

 

 

L.M. YASUI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Fleming, Shelley M.

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.