Citation Nr: 1603331 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 13-15 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective date earlier than March 28, 2006 for the resumption of a 10 percent evaluation assigned for service connected right knee chondromalacia. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Ryan, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to August 1976; from January 1981 to February 1988; and from March 1991 to May 1992. In September 1988, the Veteran was awarded a 10 percent rating for his right knee disability. In June 1990, the VA sent the Veteran a letter via the United States Post Office, reminding him of his upcoming June 25, 1990 Compensation and Pension (C&P) examination. The letter was returned to the VA, marked "Forwarding Order Expired". On June 27, 1990, the VA sent the Veteran a letter to his last known address, informing him that he had failed to appear for his C&P examination. In July 1990, the VA sent, to the last known address, the Veteran's proposed rating reduction to zero percent. In August 1990, the VA sent a letter to the Veteran's last known address informing him that his disability rating was to be reduced to zero percent due to his failure to appear for his C&P exam. The Veteran did not submit any claims or have any claims pending until many years later, in 2007. In March 2007, the Veteran submitted a claim for an increased rating for his right knee. The RO granted the claim, rating his right knee as 10 percent disabled, as of March 2006. This appeal arises before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In December 2015, the Veteran participated in a Video Conference with the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is in the record. FINDINGS OF FACT 1. In December 1990, the RO determined that as of March 1991, the Veteran's rating would be reduced to zero, and notification was sent to the Veteran at his last known address. The Veteran was invited to submit evidence or request an additional examination. The letter was returned marked "Forwarding Order Expired". The December 1990 rating decision became final. 2. In March 2007, the Veteran filed a claim for an increased rating for his right knee condition. CONCLUSION OF LAW The claim for an effective date earlier than March 2006 for a 10 percent rating for right knee chondromalacia is denied. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110, 7104, 7105; 38 C.F.R. §§ 3.400, 20.200, 20.201, 20.202, 20.302, 20.1100, 20.1103 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he should be entitled to an earlier effective date for a 10 percent rating for right knee condition. For the following reasons, the Board finds this request must be denied. . A review of the evidence reveals the following: At some point before 1990, when the Veteran was in receipt of a 10 percent disability rating for his right knee, the Veteran moved to Pennsylvania. Although he did not file a change of address form with VA, he filed one with the United States Post Office. In November 1988, the RO sent a letter to the Veteran, reminding him of his upcoming exam and informing him that if he did not appear at the examination, absent good cause, his rating would be reduced to zero. The Veteran was sent several reminder letters which were returned to VA marked "Forwarding Order Expired." Presumably as a mistake, the VA also sent similar letters to an incorrect address. Those letters were not returned to VA. Without receiving the letters, the Veteran did not know to appear for his examination, and, subsequently, had his rating reduced to zero. The Veteran stated that after he moved he forgot about his claim and never followed up with the VA when his monthly payments stopped. Unless specifically provided otherwise in the statute, the effective date of an award based on a claim for increase shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. If a veteran files a claim for compensation with VA, and the claim is disallowed, he has the right to appeal that denial to the Board. See 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. If the Veteran does not perfect an appeal, however, the rating decision becomes final. See 38 C.F.R. §§ 20.302(a); 20.1103. A December 1990 rating decision that reduced the Veteran's right knee rating to zero percent from March 1991 became final when the Veteran did not file an appeal within the time provided by statute after he received notice of that decision. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Nor is there any indication that new and material evidence was submitted within a year of the December 1990 rating decision. 38 C.F.R. § 3.156(b). In March 2007, 16 years after the December 1990 rating decision became final, the Veteran filed a claim for an increased rating. The RO subsequently granted the increase a year prior to the filing of the March 2007 claim. However, the finality of the December 1990 decision can only be overcome by a request for a revision based on clear and unmistakable error (CUE) The Veteran has not asserted CUE. Rather, the Veteran asserts that he never received letters informing him of his examination. The provisions of 38 C.F.R. § 3.326(a) provide 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 address the consequences of a veteran's failure to attend scheduled medical examinations. Regulation (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 an examination, action shall be taken. Unfortunately, there has been no such showing of good cause, as the Veteran did not update his address with the RO. 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)) "principles 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 (198). 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 nonreciept 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 Veteran's last address of record. 38 C.F.R. § 3.1(q). However, when the claimant submits clear evidence to the contrary demonstrating that VA's regular mailing practices were either not followed or not regular, then 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 Veteran. Id. But in the normal course of events, it is the Veteran's burden to keep the VA apprised of the Veteran's current mailing address. If the Veteran 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). In this case, the record indicates that notification of the scheduled VA medical examinations were sent to the Veteran's address of record, and returned to the VA due to the expiration of the Veteran's Forwarding Order with the Post Office. The Veteran admitted he never filed a change of address with the RO, and that the RO had no choice but to send the letters to the Veteran's address of record. Thus, as the Veteran has asserted no evidence that the regular mailing practices were not followed or were irregular, the Secretary is entitled to the presumption of regularity. Moreover, while the Veteran has made statements that he believes the effective date assigned in the December 2009 rating decision was based on errors, neither he nor his representative have actually asserted a claim of CUE in the rating decision. Accordingly, the Veteran did not submit any claims for increase or an indication of the intent to file a claim or have any claims pending until many years later; that is, until March 2007. Nor is there any indication that an NOD or new and material evidence was submitted within a year of the December 1990 rating decision. Although the Board is grateful for the Veteran's meritorious service, an effective date earlier than March 2006 for the grant of a 10 percent rating must be denied. ORDER Entitlement to an earlier effective date for a 10 percent rating for a right knee disability is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs