Citation Nr: 1506451 Decision Date: 02/12/15 Archive Date: 02/18/15 DOCKET NO. 10-10 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for right ankle instability. 2. Entitlement to an increased rating in excess of 20 percent for left ankle instability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alicia R. Bordewyk INTRODUCTION The Veteran served on active duty from August 1999 to August 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which awarded an increased rating of 10 percent each for the right ankle and left ankle instability, effective August 7, 2009. In September 2011, the RO awarded separate 20 percent evaluations for bilateral ankle instability, effective August 7, 2009. A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for a higher rating for the right and left ankle disability remains before the Board. The Veteran provided testimony during an informal conference with a Decision Review Officer at the RO in January 2011. A report from this conference is of record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The veteran failed to report for scheduled VA examinations in February and July 2011. He offered no good cause for his failure to report. CONCLUSIONS OF LAW 1. The claim for an increased rating in excess of 20 percent for left ankle instability is denied as a matter of law. 38 C.F.R. § 3.655 (2014). 2. The claim for an increased rating in excess of 20 percent for right ankle instability is denied as a matter of law. 38 C.F.R. § 3.655 (2014). REASONS AND BASES FOR FINDING AND CONCLUSIONS 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 (2014). In addition, when requested information is not furnished within one year claims are considered abandoned. See 38 C.F.R. § 3.158 (2014). The United States Court of Veterans Affairs (Court) 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). Although, in dicta, 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 the 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). The Veteran was provided with a VA examination in October 2009. The Veteran submitted evidence of treatment for his ankles by a private medical provider in January 2011. The findings were not consistent with those made on the October 2009 VA examination report. Accordingly, a new examination was scheduled for the Veteran in January 2011. He requested that month that the examination be rescheduled as he would be out of town. The new examination was scheduled for February 2011 and the Veteran failed to report. He failed to report for another VA examination in July 2011. There is no documentation from the medical facility contained in the claims file notifying the Veteran of his scheduled examinations. However, the United States Court of Appeals for Veterans Claims (Court) has acknowledged that VA's procedures regarding examinations do not include placing a hard copy of the original appointment letter in the claims file and has determined that, under the presumption of regularity, it is presumed that the Veteran received notice of the examination. Specifically, the Court held that because the regular practices of VA do not include maintaining a hard copy of the Veteran's notice of his/her scheduled VA examination, the absence of any such copy from the claims file cannot be used as evidence to demonstrate that that notice was not mailed. Kyhn v. Shinseki, 24 Vet. App. 228 (2011) (per curiam). The Veteran has not indicated that he did not receive the notice for the February or July 2011 examinations, nor has he advanced any other arguments to rebut the presumption. He was sent a copy of the September 2011 rating action that noted his failure to report and did not respond. He has not offered any good cause for his failure to report for the scheduled examinations. The Veteran failed to report for the VA examinations without good cause, despite being notified of the scheduled examinations at his last known address. The Board finds that 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) (2014). Given the fact that the veteran has not contacted the RO with a reason for his failure to report, the Board is satisfied that his failure to report to the scheduled VA examinations was without good cause. See 38 C.F.R. § 3.655. Therefore, the claim for an increased rating must be denied as a matter of law. See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). 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 2014); see also 38 C.F.R. §§ 3.159, 3.326 (2014). For the reasons set forth above, the Board finds that the Veteran's claim for an increased rating for bilateral ankle instability lacks legal merit and therefore, there is no reasonable possibility that further assistance or development of the claim at the 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 v. Brown, 6 Vet. App. 426, 430 (1994) (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 that the claim for an increased rating for bilateral ankle instability must be denied. ORDER A rating in excess of 20 percent for left ankle instability is denied. A rating in excess of 20 percent for right ankle instability is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs