Citation Nr: 1031633 Decision Date: 08/23/10 Archive Date: 09/01/10 DOCKET NO. 05-08 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The Veteran had active duty from July 25, 1974, to November 22, 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran's claim was originally before the Board in July 2007. At that time, the Board reopened the Veteran's service connection claim for an acquired psychiatric disorder, but denied the claim on the merits, noting that the Veteran had diagnosed schizophrenia which clearly and unmistakably preexisted service. However, the Board found that the Veteran's schizophrenia was not aggravated by his period of active service. The Veteran subsequently appealed this denial to the United States Court of Appeals for Veterans Claims (Court), which in a March 2009 order, vacated the Board's July 2007 decision and remanded it for additional evidentiary development. The Veteran's claim was remanded in August 2009 pursuant to the Court's order for additional evidentiary development, to include affording the Veteran the opportunity to identify pertinent VA and non-VA treatment records as well as obtaining outstanding service personnel records (SPRs) and a VA examination. As discussed in greater detail below, the Board finds that there has been substantial compliance with the August 2009 remand order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Veteran's claim is appropriately before the Board for final appellate consideration. FINDING OF FACT The Veteran failed to report for a VA examination scheduled in March 2010 in connection with his reopened service connection claim for an acquired psychiatric disorder; and he has not presented good cause for his absence. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder are not met as a matter of law. 38 C.F.R. § 3.655(b) (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his currently diagnosed schizophrenia either began during or was otherwise caused by his brief period of active service; or, in the alternative, that his schizophrenia preexisted his period of active service and was aggravated by it. As noted above, the Board remanded the Veteran's reopened service connection claim for an acquired psychiatric disorder in August 2009. In particular, the Veteran was asked to identify any VA and non-VA sources of treatment for a psychiatric disorder both before and since service. The Veteran was also asked to authorize VA to obtain treatment records on his behalf from Bryce Hospital as well as from any correctional facilities. Moreover, the Board sought to obtain the Veteran's complete service personnel records (SPRs) as well as afford him an opportunity for a VA examination. See Board's August 2009 remand order and duty to assist letters dated August 2009 (requesting information from the Veteran pertaining to any recent VA treatment) and January 2010 (requesting that the Veteran provide or authorize VA to obtain treatment records on his behalf from Bryce Hospital and from any correctional facilities). The Veteran's SPRs were obtained and associated with the claims file. However, in July 2009, the Veteran submitted a statement to VA in writing in which he indicated that he had no additional evidence to submit in support of his claim. There is also no indication of record showing that the Veteran provided or authorized VA to obtain records from Bryce Hospital or from any correctional facilities at any time following the issuance of the August 2009 remand order. Preliminarily, 38 C.F.R. § 3.655(b) (2009) makes clear that when a veteran fails to report, without good cause, for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Id. When a veteran fails to report for an examination 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. Id. Examples of good cause include, but are not limited to, the illness or hospitalization of the Veteran, death of an immediate family member, etc. Id. With respect to the Veteran's VA examination, he was notified in March 2010 that he would be scheduled for an examination "to evaluate your disability claim." The Veteran was also advised that the failure to report for an examination, without good cause, would result in certain consequences, including having his claim rated based on the evidence of record, "or even denied." He was also informed that "[w]ithout the examination, we may have to deny your claim, or you might be paid less than you otherwise would." Examples of good cause were provided. The Veteran was scheduled for a VA mental disorders examination in March 2010, but failed to report for the examination. He also failed to provide good cause for missing the scheduled examination and made no attempt to reschedule the examination for a later date. In fact, the Veteran's representative conceded in the August 2010 informal hearing presentation (IHP) that the Veteran failed to report for the scheduled examination, but stated that there "may have been" mitigating circumstances sufficient to show "good cause." However, neither the Veteran nor his representative provided any specific information pertaining to these claimed mitigating circumstances. Instead, the representative requested that "the Veteran should be given another opportunity to report for this vital examination." While the Board agrees with the representative that the missed examination was "vital" to the Veteran's reopened service connection claim for an acquired psychiatric disorder, the Veteran is not entitled to another opportunity to report for an examination absent a showing of good cause. Unfortunately, 38 C.F.R. § 3.655(b) specifically states that where, as here, in the absence of good cause, a veteran fails to report for an examination scheduled in conjunction with a reopened claim for a benefit which was previously disallowed, the claim must be denied. There is a presumption of regularity under which it is presumed that government officials have 'properly discharged their official duties.' Kyhn v. Shinseki, 23 Vet. App. 335, 338 (2010) (quoting Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992)). This presumption of regularity has been extended to various processes and procedures associated with the claims process, including the mailing of notices of VA examinations. Jones v. West, 12 Vet. App. 98, 100-02 (1998). The presumption of regularity is not absolute, but it may be overcome only by the submission of clear evidence that VA did not follow its regular mail practices or that its practices were not regular. Clarke v. Nicholson, 21 Vet. App. 130, 133-34 (2007). VA has a duty to assist a veteran in obtaining information and evidence necessary to substantiate his claim, but a veteran also has a corresponding duty to cooperate with VA in the development of a claim. Turk v. Peake, 21 Vet. App. 565, 568 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street). A veteran's duty to cooperate in the development of his claim includes his participation in a VA examination. Dusek v. Derwinski, 2 Vet. App. 519, 522 (1992) (noting that it is incumbent on a veteran to submit to a VA examination if he is applying for compensation). In this case, information pertaining to the scheduled examination was sent to the Veteran's last known address, an address he has used since at least August 2000. See August 2000 VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative). The record does not reflect, nor does the Veteran allege, that he failed to receive notice of the scheduled examination. Furthermore, none of the notice letters sent to the Veteran following the issuance of the August 2009 remand order were returned as undeliverable. There is also no indication of record that the Veteran changed addresses or moved at any time following the issuance of the August 2009 remand order. To the extent that the Veteran might have changed addresses or moved, the Court has held that "[i]n the normal course of events, it is the burden of the veteran to keep the VA apprised of his whereabouts. If he does not do so, there is no burden on the part of the VA to turn up heaven and earth to find him." Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Contrary to the representative's request, the Board finds that VA is not obligated to undertake additional measures in an attempt to locate the Veteran for the purpose of offering him another examination. Additionally, the Board notes that the RO mailed a supplemental statement of the case (SSOC) to the Veteran at that same address in June 2010 after he missed the scheduled examination. The Veteran was again advised the provisions of 38 C.F.R. § 3.655 and informed that where, as here, the Veteran missed a scheduled VA examination in connection with a reopened claim, his claim was denied. VA also received no correspondence from the Veteran following the issuance of the SSOC. In light of the evidence described above, the Board finds substantial compliance with the August 2009 remand order. D'Aries, 22 Vet. App. at 105; Dyment, 13 Vet. App. at 146-47. The Board also finds that the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder must be denied as a matter of law. 38 C.F.R. § 3.655(b); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The procedural history of the Veteran's claim as discussed at the beginning of this decision clearly indicates that the claim before the Board at this time is a reopened claim. Regrettably, the Board is compelled by 38 C.F.R. § 3.655(b) to deny the Veteran's reopened service connection claim for an acquired psychiatric disorder as a matter of law, particularly where, as here, (1) there is a presumption of regularity that notice of the examination was mailed to the Veteran which has not been rebutted by clear and convincing evidence to the contrary; and (2) the Veteran failed to attend a scheduled VA examination without a showing of good cause. Accordingly, the Veteran's reopened service connection claim for an acquired psychiatric disorder must be denied. 38 C.F.R. § 3.655(b); Kyhn, 23 Vet. App. at 342. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, 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 notice from VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further observes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. VCAA notice is not required in this case because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis, 6 Vet. App. at 430 (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit); 38 C.F.R. § 3.655(b). Thus, the Board finds that VA has complied, to the extent required, with the duty-to- assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). ORDER Service connection for an acquired psychiatric disorder is denied as a matter of law. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs