Citation Nr: 1108397 Decision Date: 03/02/11 Archive Date: 03/17/11 DOCKET NO. 08-37 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for a left ankle disorder. 3. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from July 2000 to June 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the Veteran's application to reopen his previously denied service connection claims. In September 2010, the Board found that new and material evidence had been received to reopen the previously denied claims, and remanded the underlying service connection claims for further development to include VA medical examination(s) to address the etiology of the claimed disabilities. As detailed below, the Veteran failed to report for the scheduled examinations without good cause. Therefore, Board finds that the remand directives have been completed to the extent permitted by the cooperation of the Veteran, and a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT The Veteran failed to report for VA medical examination scheduled in conjunction with his reopened claim, and no good cause has been shown for this failure. CONCLUSION OF LAW 1. Service connection is not warranted for a right ankle disorder as a matter of law. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.326, 3.655 (2010). 2. Service connection is not warranted for a left ankle disorder as a matter of law. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.326, 3.655 (2010). 3. Service connection is not warranted for a low back disorder as a matter of law. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.326, 3.655 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). For the reasons detailed below, the Veteran's appeal must be denied as a matter of law. In VAOPGCPREC 5-2004 (July 23, 2004) VA's Office of General Counsel held that the VCAA does not require either notice or assistance when the claim cannot be substantiated under the law or based on the application of the law to undisputed facts. Similarly, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). As noted in the Introduction, the Board remanded the Veteran's reopened claims for further development, to include a VA medical examination to address the etiology of the current bilateral ankle and low back disorders. The provisions of 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. Further, the provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that 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. However, when the examination is 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. The record reflects that VA medical examinations were scheduled for October and December 2010, but it was noted that the Veteran failed to report for these examinations. As the Court stated in Saylock v. Derwinski, 3 Vet. App. 294, 395 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)), "[p]rinciples of administrative regularity dictate a presumption that Government officials 'have properly fulfilled their official duties.'" The Court has applied the presumption of regularity to various processes and procedures throughout the VA administrative process, including the RO's mailing of notice of a VA medical examination. Jones v. West, 12 Vet. App. 98, 100-02 (1998). The presumption of regularity is not absolute; however, it may be overcome only by the submission of "clear evidence to the contrary." Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). A claimant's mere statement of nonreceipt is insufficient for that purpose. See Butler v. Principi, 244 F.3d. 1337, 1340 (Fed. Cir. 2001). In Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994), the Court noted that VA is required only to mail notice to the latest address of record in order for the presumption of regularity to attach. In addition, according to VA regulation, notification for VA purposes is written notice sent to the claimant's last address of record. 38 C.F.R. § 3.1(q). However, when the claimant submits "clear evidence to the contrary" to the effect that VA's "regular" mailing practices were not followed or were not regular, the Secretary is no longer entitled to the benefit of the presumption of regularity. Warfield v. Gober, 10 Vet. App. 483, 486 (1997). The burden then shifts to the Secretary to show that the document in question was mailed to the claimant. Id. But in the normal course of events, it is generally the Veteran's burden to keep VA apprised of his whereabouts. If he does not do so, VA is not obligated to "turn up heaven and earth to find him." Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Most recently, the Court reasoned that since the regular practices of VA do not include maintaining a hard copy of the Veteran's notice of his/her scheduled VA examination, under the presumption of regularity, the absence of any such copy from the claims file, coupled with the Veteran's allegation of non-receipt of such notice, cannot be used as evidence to demonstrate that that notice was not mailed. The Court added that there is no independent requirement for a hard copy of the notice to report for a VA examination to be contained in the claims file for the presumption of regularity to apply. Kyhn v. Shinseki, 23 Vet. App. 335, 339-40 (2010) In this case, the record indicates notification of the scheduled VA medical examinations were sent to the Veteran's address of record, and no alternative address is shown. This notification was not returned to VA as undeliverable, nor has the Veteran contended he did not receive this notification. Moreover, no explanation has been provided by the Veteran, to include through his accredited representative, regarding his failure to report for the scheduled examinations. The language of 38 C.F.R. § 3.655 leaves no authority for the RO or the Board to review the issues on appeal on the basis of the evidence already of record where the claimant does not show "good cause" for failure to report for the scheduled examination in cases such as this which concern reopened claims for benefits which were previously disallowed. Rather, the regulation compels the RO and the Board to deny the claim strictly on the basis of the failure to report for a scheduled examination without good cause. Accordingly, the Veteran's appeal is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER Entitlement to service connection for a right ankle disorder is denied as a matter of law. Entitlement to service connection for a left ankle disorder is denied as a matter of law. Entitlement to service connection for a low back disorder is denied as a matter of law. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs