Citation Nr: 0812621 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 06-03 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a rating in excess of 10 percent for bilateral flat feet. REPRESENTATION Appellant represented by: Kurt P. Leffler, Attorney ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from May 1991 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue on appeal was obtained. 2. The veteran failed to report for a scheduled VA examination in conjunction with his claim and good cause for his failure to report has not been shown. CONCLUSION OF LAW The claim for entitlement to a rating in excess of 10 percent for bilateral flat feet is denied as a matter of law. 38 C.F.R. § 3.655 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") have been fulfilled by information provided to the veteran by correspondence dated in July 2005. Although the correspondence was sent to the veteran at the mailing address of his attorney, the Board finds he was provided adequate VCAA notice. It is significant to note that all correspondence concerning the present issue on appeal was submitted by the veteran's attorney or from his office. A statement of the case identifying the VCAA duties, however, was also provided to the veteran at his address of record. The veteran is found to have been notified of VA's responsibilities in obtaining information to assist in completing his claim, to have been notified of his duties in obtaining information and evidence to substantiate his claim, and to have been requested to send in any evidence in his possession that would support his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in March 2006. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. VA records show the veteran was notified of a scheduled examination pertinent to this claim at his address of record and that he failed to report. No good cause for the failure to report has been demonstrated. Further attempts to obtain additional evidence would be futile. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. VA regulations provide that when a claimant fails to report for a scheduled medical examination, without good cause, a claim for increase shall be denied without review of the evidence of record. See 38 C.F.R. § 3.655 (2007). The Court has held that the burden was upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination. Hyson v. Brown, 5 Vet. App. 262, 265 (1993); see also Connolly v. Derwinski, 1 Vet. App. 566 (1991). The Court has also held that VA's "duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a veteran wishes help he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)). Notification for VA purposes is a written notice sent to the claimant's last address of record. See 38 C.F.R. § 3.1(q) (2007). In this case, records show the veteran was scheduled for a VA examination in August 2005, but that he failed to report. Records show he was notified of this examination at his address of record. The veteran was notified in correspondence dated in July 2005 and in the January 2006 statement of the case that the consequence for failure to report for a scheduled examination without good cause in connection with an increased rating claim would be denial. The veteran has provided no explanation for his failure to report for the examination. Although in a January 2006 VA Form 9 the veteran's attorney referred to issues of good cause, adequacy of private medical evidence, and an inadequate statement of the case with reference to notice of disagreement correspondence dated January 14, 2005, and February 4, 2005, the Board finds no basis for additional assistance or other action as a result of these statements. If the veteran, in fact, claims he had good cause for failing to report for the VA examination he has provided no information for appellate review. A review of the record reveals no private medical evidence pertinent to the issue on appeal nor does the notice of disagreement correspondence identified by the attorney appear to be related to this issue. Given the presumption of regularity of the mailing of VA examination scheduling notice and since the veteran has provided no explanation for not having reported for examination, the Board is satisfied that the veteran was properly notified and failed to report to the scheduled VA examinations without good cause. See 38 C.F.R. § 3.655. Therefore, the claim for entitlement to a rating in excess of 10 percent for bilateral flat feet must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to a rating in excess of 10 percent for bilateral flat feet is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs