Citation Nr: 1724640 Decision Date: 06/29/17 Archive Date: 07/10/17 DOCKET NO. 11-22 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an increased disability rating for service-connected lumbar strain/sprain and degenerative disc disease, currently rated at 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars WITNESSES AT HEARING ON APPEAL The Veteran and T. S. ATTORNEY FOR THE BOARD J. Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1990 to September 1996 and from November 1996 to June 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2016. A transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran was scheduled for a November 2016 VA examination that was scheduled in connection with her claim for an increased rating for service-connected lumbar strain/sprain and degenerative disc disease. 2. The Veteran failed to report for the November 2016 VA examination and has not shown good cause for her failure to report. CONCLUSION OF LAW A rating in excess of 20 percent for lumbar strain/sprain and degenerative disc disease is denied on the basis of the Veteran's failure to report for a scheduled VA medical examination in connection with her claim. 38 C.F.R. § 3.655 (a), (b) (2014); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002), 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify was satisfied by a January 2009 letter, and all relevant VA treatment records, service treatment records, Social Security Administration records, and private treatment records are part of the record. In pertinent part, the law also provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. Id. The Board notes that the Veteran was scheduled for a May 2013 VA examination to determine the current severity of her service-connected lumbar strain/sprain and degenerative disc disease. The Veteran did not attend this examination. The Veteran stated that she had never received notice of this examination during her October 2016 hearing. The Veteran testified that her address had not changed in 13 years, and acknowledged that her claim was last denied because she failed to attend the examination of which she claimed to have no notice. The Veteran was then scheduled for another VA examination in November 2016, which she failed to attend. The VA sent the Veteran and her representative, then Veterans of Foreign Wars, a January 2017 rating decision notifying the Veteran of her failure to report for her November 2016 examination and denying the Veteran's claim for an increased rating for service-connected lumbar strain/sprain and degenerative disc disease. VA requested that the Veteran notify VA when she would be able to attend an examination. Neither the Veteran nor her representative responded to this request. The record contains no justifiable indication, or good cause, or reason for her failure to appear for the November 2016 examination. The Board finds that the Veteran was given an opportunity to present for a VA examination and the Veteran had notice of the consequences of failing to appear. Therefore, VA satisfied its duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000). Analysis Under 38 C.F.R. § 3.655, 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. When the examination was 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. 38 C.F.R. § 3.655(b). VA regulations define an original claim as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160(b) (2014). In this case, the claim on appeal is not the original claim for compensation as contemplated by the operative VA regulations. Rather, it is a claim for an increased rating. The Veteran failed to report to her November 2016 examination. A claimant failing to report for a scheduled examination must show good cause for so doing. See 38 C.F.R. § 3.655 ; Engelke v. Gober, 10 Vet. App. 396, 399 (1997). The Veteran has not alleged that she lacked notice of the examination, or provided any other reason for missing the examination. The Veteran has received notice of missing the examination in a subsequent rating decision, and a VA 21-22 returned in May 2017 indicates that the Veteran's last known address has not changed. Therefore, the Board finds no evidence that the Veteran did not receive notice of the examination and that the presumption of regularity of the administrative process has not been rebutted by clear and convincing evidence. See Khyn v. Shinseki, 24 Vet. App. 228 (2011) (providing that the presumption of regularity applies to examinations). Although the actual notice letter for the date and time of the examination is not present in the claims folder, the presumption of regularity still applies per VA's normal practice of advising the claimant of the time and place of a VA examination. Therefore, the Board concludes that the Veteran has not shown good cause for her failure to report for the November 2016 examination. See 38 C.F.R. § 3.655. A claimant is responsible for cooperating with VA in the development of her claim. 38 U.S.C.A. § 5107(a); Woods v. Gober, 14 Vet. App. 214, 224 (2000). The Court of Appeals for Veterans Claims has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996)." If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In sum, a VA examination was necessary to determine the current nature and severity of the Veteran's service-connected lumbar strain/sprain and degenerative disc disease. She was scheduled for such an examination and did not appear. The claim on appeal is not an original compensation claim and the current severity of the Veteran's lumbar strain/sprain and degenerative disc disease cannot be determined based on the evidence of record. 38 C.F.R. § 3.160 (b). Rather, the Veteran's claim falls into the other category of cases of a claim for increase. In this case, the criteria for a denial based on application of 38 C.F.R. § 3.655 have been met and the claim must be denied pursuant to the operative regulation. 38 C.F.R. § 3.655 (b); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the claim must be denied as a matter of law. ORDER Entitlement to an increased disability rating for service-connected lumbar strain/sprain and degenerative disc disease is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs