Citation Nr: 1237232 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-24 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a right foot injury. ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1999 to February 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for residuals of a right foot injury, rated 10 percent, effective November 4, 2008. This case was previously before the Board in July 2011 and January 2012 when it was remanded for additional development. [In the January 2012 Board remand, it was noted that there were some issues regarding the Veteran's mailing address and receipt of VA correspondence. However, the record reflects that he is receiving mail at his currently identified mailing address of record, and there is no indication he advised VA of a mailing address change or that correspondence from VA since the January 2012 Board remand (or prior) were returned as undeliverable. The United States Court of Appeals for Veterans Claims (Court) has held that in the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process (and that a statement by a claimant, standing alone, is not sufficient to rebut the presumption of regularity). See YT v. Brown, 9 Vet. App. 195, 199 (1996); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62 (1992)).] FINDING OF FACT In July 2011, the Veteran was asked to provide identifying information and the releases needed to secure pertinent outstanding private medical evidence necessary to adjudicate his claim for an increased rating for residuals of a right foot injury; more than a year has lapsed since that request; he has not responded. CONCLUSION OF LAW By failing to submit requested identifying information and releases for critical evidence needed to properly adjudicate his claim for an increased rating for residuals of a right foot injury, the Veteran has abandoned such claim, and his appeal in this matter must also be considered abandoned. 38 U.S.C.A. §§ 5107, 7105(d)(5) (West 2002); 38 C.F.R. § 3.158(a) (2011). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant 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 VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As the April 2009 rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). An April 2010 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to increased initial ratings; and a May 2012 supplemental SOC (SSOC) readjudicated the matter after the Veteran had opportunity to respond. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran's service treatment records (STRs) and some postservice treatment records (including Virtual VA, i.e., electronic records) have been secured/viewed. As will be explained below, further pertinent (and perhaps critical) evidence is outstanding. However, such evidence cannot be obtained without the Veteran's cooperation (by providing identifying information and authorization for release of records). See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist in developing the facts and evidence pertinent to a Veteran's claim is not a one-way street). In July 2011 and January 2012, the RO asked the Veteran to provide the information and releases. He has not responded, and further development cannot proceed without his cooperation. The RO arranged for an examination on behalf of VA in March 2009 and in August 2011 in conjunction with this claim (notably, prior to completion of the evidentiary development requested). The Board observes that the opinions offered are based on a less than complete factual background. Given the circumstances, VA has met its assistance obligations. No further assistance is required. B. Legal Criteria, Factual Background, and Analysis Where evidence requested in connection with a claim for VA benefits is not furnished within 1 year after the date of the request, the claim will [emphasis added] be considered abandoned. 38 C.F.R. § 3.158(a). The Board's July 2011 and January 2012 remands noted that in his June 2010 VA Form 9 (Substantive Appeal), the Veteran identified pertinent outstanding evidence (i.e., reports of private treatment from Scott and White Hospital (in April 2010)), and requested that such records be secured and considered. The January 2012 Board remand advised the Veteran of 38 C.F.R. § 3.158(a). In July 2011 and January 2012, the Appeals Management Center (AMC) sent the Veteran a letter asking him to complete and return the enclosed VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) so that VA could secure records of his private treatment for his service-connected right foot disability, to specifically include from Scott and White Hospital. The letters were mailed to the Veteran's current address, and were not returned as undelivered. He did not respond. More than a year has passed since the initial July 2011 request. The critical facts at this stage are clear. The Veteran has not provided the releases necessary for VA to secure identified outstanding evidence pertaining to his claim for an increased rating for his right foot disability. The Board is presented with a less than complete disability picture, made so by the Veteran's failure to cooperate. In such circumstances proper merits adjudication is not possible. The regulation governing in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned) (emphasis added). Notably, more recently the Court has held that even if an appellant is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a) (which is not the case here), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 231 (2012). Hence, the Board has no recourse but to conclude that the Veteran has abandoned this claim. See Hyson v. Brown, 5 Vet. App. 262 (1993). As the claim for an increased rating for residuals of a right foot injury is abandoned, there is no allegation of error in fact or law for appellate consideration in this matter. Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. \ ORDER The appeal seeking an increased rating for residuals of a right foot injury is dismissed. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs