Citation Nr: 1328415 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 04-32 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a total disability evaluation on the basis of individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran had active service from May 1981 to November 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied the benefits sought on appeal. The Veteran perfected an appeal of an August 2004 rating decision that granted a compensable rating of 10 percent for his low back disorder. The decision did not address the Veteran's employability, but his reports at VA examinations raised the issue of individual unemployability. Hence, the Board took jurisdiction of the TDIU claim on appeal. See Rice v. Shinseki, 22 Vet. App. 407 (2009). Pursuant to the Veteran's request, a Board hearing was scheduled and rescheduled on several occasions. The Board remanded the case in April 2011 so that a hearing could be scheduled. An October 2011 RO letter informed the Veteran his hearing was scheduled for December 1, 2011, he failed to appear for his hearing. To date. there is no record of a request for a rescheduling of the hearing. Hence, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.702(d) (2012). The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal. The Board has considered the documents in both files while reviewing this appeal. FINDINGS OF FACT 1. The AMC exhausted all reasonable efforts to comply with the January 2013 Board remand. 2. The Board remanded the case for a VA examination to address the issue of employability. 3. The Veteran, without good cause, failed to report for VA examination to evaluate his employability. CONCLUSION OF LAW The claim of entitlement to TDIU is denied as a matter of law. 38 C.F.R. § 3.655(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Requirements VA regulations provide that when a claimant fails to report for a scheduled medical examination without good cause the claim for an increased rating shall be denied, without review of the evidence of record. See 38 C.F.R. § 3.655. Further, when requested information is not furnished within one year, claims are considered abandoned. See 38 C.F.R. § 3.158. The United States Court of Appeals For Veterans Claims (Court) held the burden was upon VA to demonstrate 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). In dicta, however, the Court stated that in the normal course of events it was the burden of the Veteran to keep the VA apprised of his whereabouts, and that if he did not do so there was no burden on VA to turn up heaven and earth to find him before finding abandonment of a previously adjudicated benefit. Id. The Court has also held that the "duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Analysis In January 2013, the Board remanded the case to AMC so that an examination could be scheduled to address the Veteran's claim of unemployability. In a February 2013 letter, the AMC informed the Veteran additional evidence was needed and included VA Forms 21-4142 to obtain the necessary releases. In February 2013, the AMC asked a VA medical center (VAMC) to schedule the Veteran for an examination. A March 2013 letter from AMC to the Veteran informed him the Northport, New York ,VAMC, had informed the AMC the Veteran failed to report. Documentation in the claims file reflects that the AMC discovered that the Veteran's known current address was different from the one noted in the February 2013 examination request. The March 2013 AMC letter was sent to the address revealed by the Address Check, and it informed the Veteran of the consequences for failing to report to a scheduled examination without good cause. The AMC again requested the Veteran be scheduled for an examination. The request additionally alerted the Northport VAMC that the Veteran's address was different from that reflected in the Veterans Health Administration data base. A June 2013 VA Form 21-0820, Report of General Information, reflects the AMC contacted the Northport VAMC, and a clerk informed the AMC representative the Veteran had not been seen at that facility since September 2011; another address verification was performed, and the Veteran could not be contacted via telephone. A June 2013 AMC letter informed the Veteran that VA treatment records had not been obtained and asked him if he had any in his possession. The letter also informed the Veteran that the Northport VAMC had advised AMC that he again failed to report for his examinations. The letter also informed the Veteran the VA system had conflicting mailing addresses for him, and efforts to contact him via telephone had been unsuccessful. He was asked to contact the AMC, the RO with jurisdiction of his claims file, or the Northport VAMC with his most current contact information. The above events were noted in the June 2013 Supplemental Statement of the Case (SSOC). VA may rely on the "last known address" shown of record, and the burden is on a claimant to keep VA apprised of his or her whereabouts. Thompson v. Brown, 8 Vet. App. 169, 175 (1995). In Lamb v. Peake, 22 Vet. App. 227, 232 (2008), the Court noted the RO in that case had sent a letter notifying the claimant of the VA examination, to which he failed to report, and a second letter informing him that his payments were going to be discontinued due to his failure to report to that VA examination. Both letters were returned unclaimed. The Court found no Due Process violation in light of the VA's attempts to notify the Veteran failed because he did not keep VA inform informed of his current mailing address: "the notices of examination and suspension of benefits were mailed [to] the appellant's correct mailing address at the time they were mailed." Id. at 213. The VAMC notice letters to the Veteran are not of record, but the AMC letters informed him of the VAMC reports that he failed to report for the scheduled examinations. The Board notes further that none of the AMC letters were returned by postal authorities as undelivered as addressed. As a result, the Board finds additional efforts to schedule an examination would be futile. 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). Given the presumption of regularity of the mailing of VA examination scheduling notice and the fact that the veteran has not contacted the AMC, VAMC, or RO, with a reason for his failure to report, the Board is satisfied the Veteran failed to report to the scheduled 2013 VA examinations without good cause. See 38 C.F.R. § 3.655(b). Therefore, the claim for a TDIU must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Finally, the Board finds that notwithstanding the notice and duty to assist provisions of the Veterans Claims Assistance Act of 2000, no undue prejudice to the Veteran is evident by a disposition by the Board herein, as the amended provisions of the Act specifically provide that VA is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance will aid in substantiating the claims. See 38 U.S.C.A. § 5103A(2) (West 2002); see also 38 C.F.R. §§ 3.159, 3.326. For the reasons set forth above, the Board finds the Veteran's claim for a TDIU lacks legal merit under the law and, therefore, there is no reasonable possibility further assistance or development of the claim at the AMC/RO level will result in a grant of any benefit sought. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (Strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis, 6 Vet. App. at 430 (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Thus, the Board finds further development is not warranted and the Veteran is not prejudiced by this final appellate review. See Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the fact the Veteran's failure to report for the 2013 VA examinations is without good cause, his claim for a TDIU must be denied. 38 C.F.R. § 3.655(b). ORDER Entitlement to a TDIU is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs